National Security, Privacy, Data Protection and Retention, Surveillance
Big Brother Watch v. the United Kingdom (No. 2)
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Federal Court No.11 of Argentina held that a judge’s investigative measures to order the release of a journalist’s telephone records were not “necessary” and ordered the records to be destroyed in front of the journalist. A federal judge upon noticing some relevant information for a corruption scandal, requested Thomas Catan, a Financial Times correspondent in Buenos Aires, to release his telephone records to discover the identity of an anonymous journalistic source. Catan argued that the measure violated his right to the confidentiality of sources. The court reasoned that there were other evidentiary alternatives that pursued the same purpose without affecting the confidentiality of Catan’s sources and that both the prosecutor and the judge had indicated that this evidence was of “marginal” importance. Furthermore, the court noted that this measure constituted an unreasonable restriction on freedom of expression, and thus would be declared as void.
Thomas Catán was the Financial Times correspondent in Buenos Aires. In that capacity, he covered a corruption scandal that was being investigated, at that time, by the federal judge Claudio Bonadio. Through a report prepared by Mr. Catan, the judge learned some information he considered relevant and, as a result, the judge requested the journalist’s telephone records from the telephone company. Mr. Catan requested the annulment of the measure from the judiciary.
The tribunal agreed and held the investigative measures were not “necessary.” Therefore, it ordered that the records —which had been stored in a safe— be destroyed in the journalist’s presence.
The Court had to resolve the tension between two interests: “on the one hand, the interest of the judiciary carrying out its duties in a case of institutional importance; on the other, the interest of the journalist that published on the facts being investigated in preserving the confidentiality of his sources.”
The Court framed the case as one that could have serious consequences for the exercise of freedom of expression (para. II) and stressed the special diligence that should be employed when issuing and applying rules that may restrict freedom of the press. It started its analysis by reviewing previous cases and highlighting the importance it gives to freedom of the press, and it referred to jurisprudence from the Inter-American Court of Human Rights and the Supreme Court of Justice of Argentina (para. III). In particular, the tribunal stressed, “protection against censorship can easily be circumvented through avenues that, in a concealed manner, can be as or more effective than a direct attempt at silencing…” (para. III). The tribunal also considered that confidentiality of information sources is a “fundamental” part of freedom of expression because journalists, through the use of anonymous sources, can access information that would otherwise be hidden from the public. By protecting sources, the legal system strengthens the debate in matters of public interest (para. III) and also allows investigations on sensitive topics or regarding public figures.
However, the tribunal did not consider that protection of sources originated in article 43 of the Constitution, which stipulates, in the relevant part:
“… Any person may file this action to obtain information on the data about himself and its purpose that is held in public registries or data banks, or in private registries or data banks that are intended for providing reports, and in case of falseness or discrimination, to demand the suppression, rectification, confidentiality, or update of said data. The secrecy of journalistic information sources shall not be affected.”
The tribunal held that article 43, regarding confidentiality of journalistic sources, only stipulates that the sources will not be affected by habeas data actions. The tribunal reached this conclusion as a result of opinions in this regard that were expressed during the 1994 Constitutional Assembly. However, the tribunal also held that protecting the confidentiality of journalistic sources is an essential part of the general freedom of expression guarantee contained in articles 14 and 32 of the Argentine Constitution (para. V). It further stated that there is no such thing as an absolute right, which makes it necessary to analyze under what circumstances can this confidentiality be violated (para. V). In addition, the Court had to resolve whether it is valid to violate confidentiality due to the mere fact that the case in question is of a criminal nature or whether there are certain limits that must be observed.
The Court based its decision on Branzburg v. Hayes, a decision of the Supreme Court of the United States (408 U.S. 665). In particular, on the dissenting opinion that argued it was necessary to achieve an appropriate balance between the interests of justice and the interests of a free press. The Court added that it was necessary to conduct a case-by-case analysis, as opposed to adopting the position that the general interest should always prevail over confidentiality of sources. In this sense, the Argentine judges derived from the Branzburg dissent the standard that a judge must prove that it would not be possible to obtain the information being sought through alternative means that were less restrictive of freedom of the press (para. V). The Court also looked to Goodwin v. United Kingdom, a decision of the European Court of Human Rights: it found it is not sufficient to “merely prove the utility that could be derived from the measure in the judicial proceedings in which it was adopted, and that the considerations that should be taken into account tilt the balance of the interests in question in favor of the interest that a democratic society has in ensuring freedom of press” (para V). When analyzing the case, the Court further stated, “authorized restrictions on freedom of the press must be necessary to ensure certain legitimate purposes, that is, it is not enough the restriction be useful for obtaining the purpose, in other words, that it can be reached by means of the restriction, but it must also be necessary, that is, it cannot be reasonably attained through other means that are less restrictive on the rights protected under the convention [ACHR]” (para. V).
Based on these standards, the Court found the decision to request access to Mr. Catan’s telephone records was not necessary. First, it found that other investigative measures had been adopted at the same time that access to the records had been requested, and that the judge did not wait for the results of the measures before adopting the one that was less restrictive, in accordance with the rules derived from the international cases. Second, the tribunal also found the records had not been used and that both the prosecutor and the judge had indicated this evidence was of “marginal” importance (para. VI). Finally, the Court stated “it is not necessary to affect the confidentiality of Catan’s information sources with the purpose of gathering useful elements for the proceedings because there are other evidentiary alternatives that allow pursuing the same end. In this context, the questioned measure constitutes an unreasonable restriction on freedom of expression and, therefore, it is illegitimate, for which reason the decision [of Fojas. 74 of the Principal], shall be declared null and void, inasmuch it affected the aforementioned constitutional guarantees.” (p.9)
For this reason, the tribunal ordered that the records —which had been kept in a safe— be destroyed in the presence of the journalist.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
This decision expands freedom of expression since it applied the standards of necessity and proportionality to an order issued by a federal judge that requested access to a journalist’s anonymous sources. While the decision does not recognize absolute immunity, it applies the highest standard of protection that is available for analyzing restrictions to freedom of expression.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Case significance refers to how influential the case is and how its significance changes over time.
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