Case Summary and Outcome

The Grand Chamber of the European Court of Human Rights unanimously held that the order issued to a magazine by the public prosecutor of Amsterdam to hand over photographs was a violation of the journalists’ rights to protect their sources. This case was the final judgment in a case referred to the Grand Chamber by the Third Section of the ECtHR which on 31 March 2009 had found that the applicant’s rights under Article 10 of the ECHR had not been violated. The Grand Chamber held that orders to disclose sources should be met with procedural safeguards, including the guarantee of review by an impartial decision-making body or judge with the power to assess whether a requirement in the public interest overrides the principle of protection of journalistic sources and thus prevent unnecessary access to information that could disclose sources’ identity.

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Facts

On January 12, 2002, journalists from the weekly magazine, Autoweek, aimed at people interested in motoring, attended an illegal street race held on the outskirts of the town of Hoorn, the Netherlands at the invitation of its organizers. Autoweek is owned by Sanoma Uitgevers B.V., a company dedicated to publishing and marketing magazines. Sanoma Uitgevers intended to publish an article about illegal car races in the Autoweek edition, no. 7/2002 on February 6, 2002, which would be accompanied by photographs of the street race held on January 12. The original photographs were stored by Sanoma Uitgevers on a CD-ROM.

On the morning of Friday, February 1, 2002, a police officer contacted the Autoweek editorial office by telephone, summoning the editors to surrender to the police all photographic materials concerning the street race of January 12, 2002. The police and prosecuting authorities suspected that one of the vehicles participating in the street race had been used as a getaway car following a “ram raid” (an attack on cash dispensers) on February 1, 2001. The features chief editor informed the police officer that this request could not be met as the journalists had only been given permission to take photographs of the street race after having guaranteed the anonymity of the participants in the race and that the press was protected against this request.

In the afternoon of February 1, 2002, at 2.30 p.m., two police detectives visited the Autoweek editorial office and issued Autoweek’s editor-in-chief with a summons, under Article 96a of the Code of Criminal Procedure (CCP), ordering Sanoma Uitgevers to surrender, in the context of a criminal investigation against an unspecified person, the photographs taken on January 12, 2002, during the illegal street race in Hoorn and all related materials. This summons had been issued by the Amsterdam public prosecutor. Autoweek’s editor-in-chief Mr Broekhuijsen refused to surrender the photographs.

Article 96a states:

1. If it is suspected that a crime within the meaning of Article 67 § 1 has been committed, the investigating officer may order a person to surrender an object if it is reasonable to suspect that the person has an object subject to seizure in his possession.
2. The order shall not be issued to the suspect.
3. By virtue of their right to decline to give evidence, the following persons are not obliged to comply with an order of this nature:
   1. the persons described in Article 217;
   2. the persons described in Article 218, insofar as surrender for seizure would violate their duty of confidentiality;
   3. the persons referred to in Article 219, insofar as surrender for seizure would put them or their relatives at risk of prosecution for a criminal offence. …”

The law enforcement authorities threatened to arrest Mr Broekhuijsen over the weekend, seal and search the whole of Sanoma Uitgevers’s premises and remove all computers for the offence of failure to comply with an official order (ambtelijk bevel), acting in violation of Article 184 of the Criminal Code.

At 6.01 p.m. on February 1, 2002, Mr Broekhuijsen was detained on suspicion of having infringed Article 184 of the Criminal Code. He was not taken to the police station but remained at Sanoma Uitgevers offices. After the Amsterdam public prosecutor had arrived at the offices and he had been brought before the prosecutor, Mr Broekhuijsen was released at 10 p.m.

At some point, and without the knowledge of the public prosecutor and the police investigators, the CD-ROM got transferred to the offices of Mr S. and Mr D. – lawyers consulted by Sanoma Uitgevers. On learning this, the public prosecutor and the other persons involved went to the lawyers’ offices. Taking the view that judicial authorisation was required, Mr D sought and obtained the agreement of the public prosecutors to seek the intervention of the duty investigating judge (rechter-commissaris) of the Amsterdam Regional Court (rechtbank), who was then contacted by telephone. The investigating judge opined that, even though he was not acting in an official capacity and so lacked competence in the matter, Sanoma Uitgevers’s journalistic privilege was outweighed by the needs of the criminal investigation and noted that if were empowered to do so he would have authorized a search of the premises.

On February 2, 2002 at 1.20 a.m., Sanoma Uitgevers, represented by Mr S. and Mr D., surrendered the CD-ROM under protest to the prosecutor, who officially seized it.

On April 15, 2002, Sanoma Uitgevers brought proceedings before the domestic courts under Article 552a of the CCP, seeking to lift the seizure of the CD-ROM and its restitution. It also sought an order requiring the police and prosecution department to destroy any reproduction of the data recorded on the CD-ROM and an injunction preventing them from taking knowledge or using information acquired from the CD-ROM. On September 19, 2002, the Regional Court ordered the seizure be lifted and the CD-ROM be returned to Sanoma Uitgevers, but held that the seizure was legitimate on the basis that a publisher or journalist did not enjoy the privilege of non-disclosure (verschoningsrecht) established in Article 96a of the CCP. The only persons that Article 218 of the CCP confers the privilege of non-disclosure on are public notaries, attorneys and medics. The Regional Court stated that the right to freedom of expression guaranteed by Article 10 of the European Convention on Human Rights “included the right freely to gather news (recht van vrije nieuwsgaring) which, consequently, deserved protection unless outweighed by another interested warranting priority” [para. 25]. It held that, in this case, the criminal investigation interest outweighed the right to free gathering of news because the investigation at issue concerned other serious offences, and not just the illegal street race in which context the duty of protection of sources had been given. The Regional Court held that the protection of journalistic sources should, in this case, yield to general investigation interests, and concluded that the interference was justified as it was based on the principles of proportionality and subsidiarity. Although the Regional Court did not find that the seizure had been rash, it conceded that a more tactful action by the police and the public prosecutor could have averted the matter’s apparent escalation.

Sanoma Uitgevers appealed on points of law to the Supreme Court (Hoge Raad) which, on June 3, 2003, declared it inadmissible.

Sanoma Uitgevers then approached the European Court of Human Rights (ECtHR), arguing that their “rights under Article 10 of the Convention had been violated as a result of their having been compelled to give up information that would allow sources of journalistic information to be identified” [para. 3].

Article 10(1) states “Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises”. Subsection 2 addresses the permitted limitations of the right: “The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”

The Third Chamber of the ECtHR held that there had been no violation of Article 10, by four votes to three. Sanoma Uitgevers requested the matter be referred to the Grand Chamber.

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Decision Overview

The Court delivered a majority judgment. Judge Egbert Myjer delivered a separate, concurring judgment. The issue before the Court was whether the order for the compulsory surrender of journalistic material which contained information capable of identifying journalistic sources issued by Amsterdam’s public prosecutor was an interference “prescribed by law” to the right to freedom of expression under Article 10 of the Convention.

Sanoma Uitgevers submitted that article 96a of the Code of Criminal Procedure lacked foreseeability because it gave unfettered discretion to the public prosecutor and the police to determine whether to order the surrender of information, with no limits on the grounds to do so or the methods to be used. It submitted that the provision was silent on interferences with the journalistic privilege of source protection. The company added that, based on Principle 3(a) of Recommendation No. R(2000) 7 of the Committee of Ministers of the Council of Europe, not having a statutory requirement of judicial control constituted a distinct violation of the legality requirement under Article 10. Sanoma Uitgevers argued that the lower Chamber had erred in holding that the unregulated involvement of an investigating judge was sufficient. Sanoma Uitgevers submitted that it was not practical to have obtained written agreement from the participants that they would keep their identity confidential and emphasized that the commitment to protect the participants’ identity was made to the organizers of the race.

The government of the Netherlands was of the view that Article 96a of the Code of Criminal Procedure was foreseeable and accessible, because it defined what groups were entitled to specific protection, which did not include journalists. It submitted that, given the number of participants at the street race, there could not have been an agreement with every participant that the journalists would keep their identity confidential. In the alternative, the government argued that if there had been a confidentiality agreement this was not breached by the request for the photographs because the request did not relate to the street race itself.

The Media Legal Defence Initiative, Committee to Protect Journalists, Article 19, Guardian News & Media Ltd. and Open Society Justice Initiative, were admitted as Third-Party interveners in this case and submitted that there was a tendency in European countries and elsewhere to introduce safeguards by statute and case-law for interferences with the protection of journalistic sources, including making this interference subject to prior judicial authorization.

The Court emphasized the importance of the right to freedom of expression and the “safeguards to be afforded to the press” [para. 50]. It added that the right to protect journalistic sources is part of Article 10’s protection of the right to receive and impart information, and that without this protection “the vital public-watchdog role of the press may be undermined and the ability of the press to provide accurate and reliable information to the public may be adversely affected” [para. 50].

In rejecting the government’s argument that the request for the photographs had nothing to do with identifying the street race participants, the Court referred to its jurisprudence in noting that “actual disclosure or prosecution of journalistic sources [is] irrelevant for the purposes of determining whether there has been an interference with the right of journalists to protect them” [para. 67]. It also highlighted the credible threats – including the arrest of the editor – made to Autoweek and Sanoma Uitgevers and how the carrying out of the threats to search the premises could have delayed the media outlet’s operations. The Court stressed the “chilling effect” when “journalists are seen to assist in the identification of anonymous sources” [para. 71]. Accordingly, the Court held that there had been an interference with the right to freedom of expression.

In assessing whether the limitation to the right was justified the Court emphasized that domestic laws must have sufficient safeguards against arbitrary interference and not confer wide discretion on the executive. The Court noted that due to their detrimental impact to press freedom, orders to disclose sources should be met with procedural safeguards “commensurate with the importance of the principle at stake” and stressed that the impact of revealing sources is felt by the source, the media outlet and the public [para. 88]. With reference to the case of British Broadcasting Corporation v. the United Kingdom the Court stated that the main safeguard is the “guarantee of review by a judge or other independent and impartial decision-making body” with the power to assess whether a requirement in the public interest overrides the principle of protection of journalistic sources and thus prevent unnecessary access to information that could disclose source’s identity, and that exercising an independent review only after the handing over of material that could reveal sources “would undermine the very essence of the right to confidentiality” [para. 91]. The Court explained that this independent body must be able to weigh the potential risk and interest prior to any disclosure and should be capable of refusing or limiting a disclosure order to protect revealing sources and whether a less intrusive measure could be adopted to meet the public interest. The Court noted that in situations of urgency there should be a procedure to identify and isolate information that could lead to sources’ identification from information that doesn’t carry this risk prior to the exploitation of the material by the authorities.

In applying these principles to the present case, the Court noted that article 96a entrusted this decision to the public prosecutor and not an independent body or judge, and held that the public prosecutor could not be considered an independent body in this context, as “he or she is a ‘party’ defending interests potentially incompatible with journalistic source protection and can hardly be seen as objective and impartial so as to make the necessary assessment of the various competing interests” [para. 93]. The Court acknowledged that in this case Sanoma Uitgevers had requested the involvement of a judge, but held that this did not could not serve as the necessary safeguard as there was no legal basis for the judge’s involvement and as the judge had no legal authority he could not issue any binding order.

Accordingly, the Court found that the quality of the law was deficient because there was no procedure with adequate legal safeguards for a party to obtain an independent assessment as to whether the interest of the criminal investigation overrode the public interest in the protection of journalistic sources. Therefore, there had been a violation of Article 10 of the Convention as the interference complained of was not “prescribed by law”.

The Court awarded Sanoma Uitgevers costs and expenses of EUR 35,000.

In his concurring decision Judge Myjer disagreed with the Court’s finding that the intervention of the investigating judge was not sufficient prior judicial review because the judge lacked official powers in the matter. He would have found that as the public prosecutor agreed with Sanoma Uitgevers’s lawyer to involve the judge meant that the prosecutor would have respected the judge’s opinion if he had said the photographic material should not be handed over. The Judge did agree on the need to set out a clear decision model requiring the judge to consider whether a more limited interference with journalistic freedom will suffice.

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