Content Regulation / Censorship, Press Freedom, Privacy, Data Protection and Retention
Mediengruppe Österreich GmbH v. Austria
Closed Expands Expression
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In July 2013, the Fourth Section of the European Court of Human Rights (ECtHR) held that Latvian investigating authorities had failed to protect the sources of a journalist and thus violated Article 10 of the European Convention on Human Rights (ECHR). After news program host Ilze Nagla had gone on air to inform the public of an information leak from the State Revenue Service database, the investigating authorities searched her home and seized several data storage devices. While the Court recognized the importance of securing evidence in criminal proceedings, it stressed that “a chilling effect” could arise when journalists were expected to assist in the identification of anonymous sources. The Court held that a search conducted with the aim of identifying a journalist’s source was a measure more extreme than an order to disclose the source’s identity.
The applicant, Ilze Nagla, was born in 1971 and lived in Riga, Latvia. At the time of the proceedings, she was a producer, reporter, and host of the weekly investigative news program De facto, which aired in prime time every Sunday night for the national television broadcaster Latvijas televīzija (LTV).
On February 10, 2010, Nagla received an e-mail from someone under the name “Neo,” announcing that “there were serious security flaws in a database” [para. 7] of the State Revenue Service (VID). According to Neo, the flaws allowed access to the data stored in the Electronic Declaration System (EDS) “without breaching any security protocols” [para. 7]. Attached to the e-mail were examples of the data that the sender had obtained, including a list of the salaries of the broadcaster’s employees. Nagla deemed the warning genuine and informed the VID of a possible security breach. On the same day, upon the VID’s application, criminal proceedings were initiated regarding the data leak.
On February 14, 2010, during the broadcast of De facto, Nagla announced that there had been a massive EDS data leak concerning the income, tax payments, and personal identity details of public officials and private individuals and companies. A week after the broadcast, Neo began publishing data through a Twitter account concerning the salaries of public officials. On April 18, 2010, Neo stopped posting.
On February 19, 2010, the police went to the broadcasting company to take the evidence of Nagla as a witness in the criminal proceedings. They asked for a transcript of the February 14 broadcast and access to the e-mail correspondence with Neo. Nagla declined to disclose the identity of her source.
On May 11, 2010, the investigating authorities found that an individual named “I.P.” had used two of the IP addresses in connection to the EDS. Likewise, the authorities had uncovered that I.P. had made several calls to Nagla’s phone number. The same day, I.P. was arrested (yet he was released from custody a few months after). Hours later, the police searched Nagla’s home. According to the journalist, “upon her return home that night a plain-clothes policeman approached her in the stairwell and, without identifying himself, physically prevented her from closing the doors. Only then did he present a search warrant and proceed to conduct the search together with two other officers. During the search, the following data storage devices were seized: a personal laptop, an external hard drive, a memory card, and four flash drives” [para. 22].
On May 12, 2010, the investigating judge retrospectively approved the search warrant of May 11, 2010, in the form of an “approval” written on that warrant.
On May 13, 2010, the Ombudsman opened an inquiry into the search of Nagla’s home to assess whether the search had interfered with her freedom of expression and whether the domestic authorities had sufficient grounds for limiting her right to freedom of expression.
Upon the complaint of the applicant, on June 14, 2010, the President of the First-Instance Court concluded that the search had been lawful and that the evidence obtained was admissible in the criminal proceedings.
On July 20, 2010, the Internal Security Bureau of the State Police, of its motion, examined the police officer’s conduct during the search and found no breaches of either the Criminal Procedure Law or the general principles of the police officers’ ethics.
On December 13, 2010, Nagla lodged a complaint to the ECtHR against the Republic of Latvia under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms.
The main issue before the Fourth Section of the ECtHR was whether the search at Nagla’s home was within the scope of Article 10 of the ECHR.
In her complaint, Nagla submitted that she had been compelled to disclose information that identified a journalistic source, and that violatied her right to receive and impart information as guaranteed by Article 10 of the ECHR. She argued that “searches of journalists’ homes and workplaces undermined the protection of sources to an even greater extent than direct orders to disclose a source” [para. 50].
After reviewing the parties’ contentions, the Court addressed the Government’s argument that the search had not been carried out to establish the identity of the applicant’s source of information but rather to gather evidence in the criminal proceedings against I.P., whose identity had already been established at that point in the investigation. The Court noted that the parties agreed that I.P.’s arrest had occurred on the same day as the search at Nagla’s home. The Court acknowledged that the Latvian authorities had reasonable suspicion that I.P. could have had some connection with the data leak but stated that the home search actions of investigating officers had been based on a wide-reaching search warrant. Therefore, the Court reasoned the circumstances invoked by the Government could not exclude the applicability of Article 10 of the ECHR.
The Court referred to the case of Nordisk Film & TV A/S v. Denmark to underscore that “Article 10 of the Convention [did] not only protect anonymous sources assisting the press to inform the public about matters of public interest” [para. 80]. The Court provided definitions: the concept of journalistic “source” amounted to “any person who provide[d] information to a journalist,” while “information identifying a source” included both “the factual circumstances of acquiring information from a source by a journalist” and “the unpublished content of the information provided by a source to a journalist” [para. 32].
The Court then noted that the Government acknowledged “the search at the applicant’s home had been aimed at gathering ‘information about the criminal offense under investigation’ and that it authorized not only the seizure of the files themselves but also the seizure of ‘information concerning [their] acquisition’” [para. 82]. By referencing the case of Financial Times Ltd and Others v. the United Kingdom, the Court stressed that, while it recognized how important it was to obtain evidence in criminal proceedings, “a chilling effect [would] arise wherever journalists [were] seen to assist in the identification of anonymous sources” [para. 82]. The Court reasoned that, regardless of whether the search had identified Nagla’s source, the seized data contained information capable of identifying Neo and her other sources. The Court rejected the Government’s argument that the search was not related to journalistic sources and thus remained within the sphere of protection under Article 10 of the Convention.
The Court explained that the interference with Nagla’s right to freedom of expression was prescribed by law. The Court noted that the applicant, referring to the Grand Chamber judgment in the case of Sanoma Uitgevers, maintained that Latvia’s law regarding “urgent searches in relation to journalists lacked foreseeability” [para. 86]. The Court then stressed that the case of Sanoma Uitgevers “concerned the quality of Dutch law and the lack of adequate legal safeguards to enable an independent assessment of whether the interests of the criminal investigation overrode the public interest in the protection of journalistic sources” [para. 87].
However, the Court stressed that the immediate case was distinguishable: in Latvia, following the ordinary procedure of section 180 of the Criminal Procedure Law, “the investigating judge weigh[ed] the potential risks and respective interests before authorizing a search” [para. 87]. The Court also mentioned section 154 of the same law, stressing the investigating judge was to make the above-described assessment before issuing a disclosure order. Thus, the Court reasoned that, in principle, there were procedural safeguards of “prior judicial scrutiny by the investigating judge for searches under the ordinary procedure and disclosure orders” [para.87]. Likewise, the Court stated that, since the interference could have intended to prevent disorder or crime and to protect the rights of others, it constituted a legitimate aim.
Concerning whether the interference was necessary in a democratic society, in the Court’s view, a search performed to determine a journalist’s source was “a more drastic measure than an order to divulge the source’s identity” [para. 95]. The Court also referred to Roemen and Schmit v. Luxembourg and Ernst and Others v. Belgium cases, stating, “[I]nvestigators who raid a journalist’s workplace or home unannounced and are armed with search warrants have very wide investigative powers, as, by definition, they have access to all the documentation held by the journalist” [para. 95]. Furthermore, the Court stressed that since the search warrant, issued under the urgent procedure, had been drafted in such vague terms as to allow the seizure of “any information” about the alleged offense committed by Nagla’s source, the reasons given by the domestic authorities were neither “relevant” and “sufficient” in the circumstances nor corresponded to a “pressing social need.”
The Court emphasized that the matter of Nagla’s report, which also triggered the search of her home, was aimed at “keeping the public informed about the salaries paid in the public sector at a time of economic crisis, when a variety of austerity measures had been introduced” [para. 97] in the country.
The Court stressed that the right of journalists not to disclose their sources was not “a mere privilege to be granted or taken away depending on the lawfulness or unlawfulness of their sources” [para. 97] but an integral part of the right to information. The Court stated that, due to the multiplicity of interests in the issue, “the conduct of the source [would] merely operate as one factor” [para. 97] to be considered in establishing a balance required under Para. 2 of Article 10 of the Convention. The Court thus concluded that the investigating authorities had proceeded to search the journalist’s home “without any judicial authority having properly examined the relationship of proportionality between the public interest of the search, on the one hand, and the protection of the journalist’s freedom of expression, on the other hand” [para. 98].
Turning to the reasons for the search under the urgent procedure, the Court stressed the search warrant described the urgency as aimed “to prevent the destruction, concealment or damaging of evidence” [para. 99] without additional explanation. The Court concluded it was unclear on what grounds such an assertion had been made. The Court also emphasized that the Government had failed to suggest the link between Nagla and I.P at the time of the search, especially because the search warrant itself noted: “the applicant’s last communication with I.P. had been on the day of the broadcast” [para. 99]. In the Court’s view, only substantial reasons could have accounted for the urgency of the search under the circumstances.
The Court also noted that the investigating judge had assessed the urgent search the following day, and the judges who had subsequently examined Nagla’s complaint against the investigating judge’s decision had reasoned that the search did not relate to the journalist’s sources at all without weighing up the conflicting interests. Therefore, the Court concluded that, in the absence of “relevant and sufficient” reasons for the interference, Article 10 of the ECHR had been violated.
Lastly, the Court examined Nagla’s claim that the search had unjustifiably interfered “with her right to respect for her home and private life” [para. 103] since her seized laptop had contained personal information that she did not see as required by the investigation. The Court, however, concluded that the journalist had failed to mention the type of information stored in her laptop and “the extent of the alleged interference with her private life” [para. 104]. Regarding Nagla’s right to respect for her home, the Court stressed that it had already examined the facts and circumstances of the search under Article 10 of the ECHR and thus considered it unnecessary to discuss that complaint’s admissibility and merits separately under Article 8 of the ECHR.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The Court’s decision emphasizes that limitations on the confidentiality of journalistic sources call for the most scrutiny. By stating that the right of journalists not to disclose their sources “was not a mere privilege to be granted or taken away depending on the lawfulness or unlawfulness of their sources” but an integral part of the right to information, the Court expanded the right to freedom of expression.
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