Case Summary and Outcome

The European Court of Human Rights found that judicially authorized access to a Ukrainian journalist’s mobile telephone communications data was a violation of the journalist’s right to freedom of expression under Article 10 of the European Convention. The journalist approached the Court after two Ukrainian courts had authorized law enforcement authorities to access her data in an attempt to determine whether the journalist had met with the head of anti-corruption bureau who had allegedly disclosed confidential information. The Court held that the domestic courts had failed to demonstrate that there was a legitimate interest in accessing the journalist’s data which outweighed the public interest in non-disclosure. The Court stressed the importance of protecting journalists’ sources and said that courts must apply careful scrutiny when determining whether an interference in the right is proportionate, necessary and justifiable.

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Facts

In 2015, the National Anticorruption Bureau of Ukraine (the NABU) instituted criminal proceedings against a prosecutor, K, on suspicion of unjust enrichment. During the proceedings, NABU tapped the telephone of K’s partner, Ms. N. In 2017, the Obozrevatel media website reported that – during a meeting between S, the head of the NABU, and media representatives – S had disclosed confidential information about ongoing investigations. One of the investigations referred to by S was the one into K, and it was apparent that the media representatives had listened to a taped conversation between Ms. N and an acquaintance. The article included an audio file of the meeting, which included the broadcasting of Ms. N’s conversation.

Ms. N laid a complaint with the Prosecutor General’s Office (PGO), seeking criminal charges against S on the grounds that he had violated her privacy and made public material related to a criminal investigation. A Member of Parliament also laid a complaint about the article with the Prosecutor General, arguing that S. had violated Ms. N’s right to respect for her private life and the rules of confidentiality in respect of ongoing criminal prosecutions.

On 16 November 2017, the PGO instituted criminal proceedings against S for the violation of Ms. N’s privacy and for the disclosure of confidential information concerning ongoing criminal investigations. As part of the investigations, the Security Services of Ukraine informed the PGO the voices on the audio of the meeting likely belonged to S, his deputy and two journalists, Nataliya Yuriyivna Sedletska and B. Sedletska, a journalist at the Kyiv office of Radio Free Europe/Radio Liberty and the editor-in-chief of the “Schemes: Corruption in Detail” television programme, worked on issues involving high-profile corruption cases within the PGO.

On December 19, 2017, the PGO questioned Sedletska and she cited Article 65 of the Code of Criminal Procedure (CCP), refusing to answer questions that would lead to the identification of her sources. She acknowledged that, as a journalist, she had been in communication with S. as well as other law-enforcement officials but refused to provide any information about the alleged meeting with S.

Article 34 of the Constitution of Ukraine does protect the right to freedom of expression.

On August 27, 2018, the PGO filed a request with the Pecherskyy District Court in Kyiv for access to Sedletska’s communications from July 19, 2016 (the date when the results of Ms. N’s phone tapping were formally documented) to November 16, 2017 (the date of institution of the criminal proceedings against S) held by the mobile service provider JSC “Kyivstar”. The information sought by the PGO included all “dates, times, call durations, telephone numbers, sent and received text messages (SMS, MMS), and [Sedletska’s] location at the time of each call or message” [para. 15]. The PGO hoped to establish the time and place of the meeting with S. The District Court authorized the request, holding that Article 163 of the CCP allowed it to assess the application without Sedletska’s presence if there were “sufficient reasons to believe that there existed a real threat of the information sought being altered or destroyed” [para. 16]. The District Court’s order was valid for one month and Sedletska was not entitled to appeal. Soon after, the Court Reporter media website reported that the PGO had monitored journalists’ calls, and included photographs of S, Sedletska and other journalists and human rights activists.

On September 4, 2019, the PGO contacted Kyivstar, requesting data on the dates, times and locations of Sedletska’s and one other person – supposedly B. – near six specified places and stipulating that no other data be disclosed.

On September 7, 2018, Sedletska unsuccessfully applied for a copy of the District Court’s order, and then, on September 11, 2018, filed a challenge before the Kyiv City Court of Appeal seeking the suspension of the order. The challenge was filed despite the District Court having indicated that its order was not appealable. The Court of Appeal delivered judgment on September 18, 2019, accepting Sedletska’s appeal under the exception in Article 209 of the CCP which permitted an appeal if a seizure of documents would prevent an individual from carrying out their occupation, noting the importance of sources to Sedletska’s professional activity. The Court referred to Article 8 of the European Convention on Human Rights and Section 17 of the State Support of Mass Media and Social Protection of Journalists Act and quashed the District Court’s order, holding that it had failed to provide reasons for its order and had violated Sedletska’s rights. Section 17 states that “[t]he professional activities of a journalist shall not serve as grounds for his or her arrest and detention, or for the seizure of material collected, processed and prepared by him or her or technical [equipment] that he or she uses in his or her work…” However, the Court found that the PGO’s September 4 request to Kyivstar for data was “not excessive” and issued a new order authorising access to the data requested by the PGO in that communication [para. 22].

Before filing the case before the Court of Appeal, Sedletska approached the European Court of Human Rights, seeking an interim measure under Rule 39 of the Rules of the Court. On September 18, 2019, the Court informed the Ukrainian Government that “in the interests of the parties and the proper conduct of the proceedings” they should refrain from accessing any data authorized for collection by the District Court, and on October 16, extended this to the data authorized for collection by the Court of Appeal [para. 25]. Sedletska and fifteen non-governmental organizations sought information from Kyivstar and the PGO on whether the investigation had accessed the data and all the requests were denied on the basis of confidentiality of the investigations. However, on February 12, 2019, the PGO stated that it had not carried out either of the Ukrainian Courts’ orders.

Article 10 of the European Convention on Human Rights protects the right to freedom of expression. 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.” Article 10(2) provides for a limitation of the rights in certain circumstances, and states: “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 Media Legal Defence Initiative and the Human Rights Platforms were granted leave to intervene in the case.

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Decision Overview

The President of the Fifth Section of the European Court of Human Rights, Síofra O’Leary, delivered the judgment of the unanimous Court. The central issue before the Court was whether the judicially authorized access to a journalist’s mobile telephone communications data in the context of a criminal investigation was a justified interference with her rights under Article 10 of the European Convention.

Sedletska submitted that the District Court and Court of Appeal orders were an unjustifiable limitation of her rights and argued that the domestic law did not provide sufficient protection for a journalist’s sources. She argued that the ex parte nature of the application for access to data meant that, had she not discovered the existence of the order by “pure chance” she would not have known that “the integrity of her communications data and her sources could be compromised” [para. 41]. Sedletska also argued that the orders were not necessary in a democratic society as there was “no pressing social need” for the disclosure of her data and that the likelihood of her having been present at the meeting with S was “a mere probability” and that the PGO had not exhausted all other means of establishing the facts [para. 43]. She submitted that the scope of the data that the PGO could access was “grossly disproportionate”: the goals of protecting Ms. N’s reputation or prosecuting officials for leaking information could not override the risk of identifying her sources through the disclosure of her communications over a sixteen-month period. Sedletska stressed that she had never known whether the Ukrainian Courts’ orders had been enforced.

The Ukrainian Government argued that there had been no breach of Sedletska’s rights under Article 10 and submitted written assurances from the PGO that the orders had not been enforced. The Government acknowledged that the orders did interfere with Sedletska’s rights but maintained that they were lawful and pursued the legitimate aims of protecting Ms. N’s rights and of furthering a criminal investigation. It stated that Sedletska’s argument that accessing her data could reveal her sources was “unsubstantiated and very general” [para. 52].

The Media Legal Defence Initiative and the Human Rights Platform emphasized the importance of protecting journalists’ sources and that the risks to the interference with this confidentiality were both prevalent across Europe and exacerbated by technological advances. They submitted that the Court’s decision in Becker v. Norway App. No. 21272/12, 2017 risked lowering the protection given to sources by the Court’s earlier jurisprudence, including in Tillack v. Belgium App. No. 20477/05, 2007. The intervenors submitted that the appropriate test for a source’s protection should be “whether a particular person acted for the purpose of informing the public of a matter of legitimate public interest”, and that questions of the conduct of the journalist or source should be irrelevant [para. 53].

The Court set out the international legal material relevant to the case, and referred to the Resolution on Journalistic Freedoms and Human Rights, which had been adopted by the European Ministerial Conference on Mass Media Policy, the European Parliament’s Resolution on Confidentiality for Journalists’ Sources – both of which had been adopted in 1994 – and to the Recommendation No. R (2000) 7 on the right of journalists not to disclose their sources of information, adopted by the Committee of Ministers of the Council of Europe in 2000. Recommendation No. R stated principles concerning the right of journalists not to disclose their sources, including Principle 1 that “[d]omestic law and practice in member States should provide for explicit and clear protection of the right of journalists not to disclose information identifying a source in accordance with Article 10” [para. 34]. The Court also referenced Recommendation 1950 which had been adopted by the Parliamentary Assembly of the Council of Europe in 2011 which specifically addresses the protection of journalists’ sources. Recommendation 1950 indicates that “[p]ublic authorities must not demand the disclosure of information identifying a source unless the requirements of Article 10, paragraph 2, of the Convention are met and unless it can be convincingly established that reasonable alternative measures to disclosure do not exist or have been exhausted, the legitimate interest in the disclosure clearly outweighs the public interest in the non-disclosure, and an overriding requirement of the need for disclosure is proved” [para. 35]. The Court also mentioned a 2015 report submitted by the UN Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression which emphasized the importance of only limiting the right to protect journalists’ sources in accordance with the right to freedom of expression.

The Court stressed that “the protection of journalistic sources is one of the cornerstones of freedom of the press” and that without this the press may be hindered in their job of providing accurate information to the public [para. 54]. The Court defined a source as “any person who provides information to a journalist” and “information identifying a source” as including “any information likely to lead to the identification of a source, 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. 55].

As the parties had accepted that the authorizations had amounted to an interference with Sedletska’s Article 10 rights the Court examined whether this interference was justified. It held that the authorizations were issued in terms of the CCP and so were “authorized by law” but noted that although ex parte hearings were permitted by law they could only be conducted in exceptional circumstances and held that it was of “significant importance” that the District Court provided more detailed reasons for applying that exception than it did. The Court also held that as the authorizations sought to prevent crime and protect the reputations of others they served “a legitimate aim” [paras. 58-59].

Having assessed the first two questions of whether the limitation to the right was authorized by law and sought to achieve a legitimate aim, the Court examined whether the interference was necessary in a democratic society. The Court stressed that given the “importance of the protection of journalistic sources for press freedom in a democratic society” in determining whether an interference in that right it had to apply “the most careful scrutiny” [para. 62]. With reference to Roemen and Schmit v. Luxembourg, App. No. 51772/99, Voskuil v. the Netherlands, App. No. 64752/01 and Becker v. Norway, App. No. 21272/12, 2017, the Court explained that an interference with the protection of journalists’ sources can only be deemed necessary in a democratic society if it is “justified by an overriding requirement in the public interest” [para. 62]. The Court commented that its jurisprudence had held that searches of journalists’ homes had been held to be a more drastic infringement of their rights than targeted orders to divulge sources’ information because they “allowed the relevant authority to obtain access to a broad range of the material used by the journalists in discharging their professional functions” [para. 63].

The Court held that the Ukrainian Courts had not provided sufficient reasons to demonstrate that the interference with Sedletska’s rights was proportionate or responded to a “pressing social need” [para. 65]. The Court characterized the District Court’s order as authorizing the collection of a wide range of Sedletska’s data, over sixteen months, which could lead to the identification of sources which had no connection to S. The Court held that this impact on Sedletska was “grossly disproportionate” to the aims of investigating the allegation of leaked information and to protect Ms. N’s reputation [para. 65]. The Court said there were no safeguards within the process to prevent the identification by the PGO of additional sources and that this was particularly detrimental given Sedletska’s work in uncovering corruption with the PGO itself. The Court commented that “it is notable that S. was himself treated by the PGO authorities as [Sedletska’s] journalistic source” and that the purpose of accessing her data was to demonstrate that S had provided her with confidential information [para. 69] The Court stressed that Sedletska’s own Article 10 rights could not be affected just because the PGO knew the name of her source and believed him to have committed a criminal offence.

The Court accepted the Government’s argument that some flaws in the District Court’s order had been rectified by the Court of Appeals, noting that the Court of Appeals order did limit the ability of the PGO to obtain information about other sources. However, the Court held that the Court of Appeal still had to justify the authorization on the grounds of the public interest, and had to therefore show that the scope of the order was needed to combat serious crime; that there were no alternative measures; and “that the legitimate interest in the disclosure [of Sedletska’s data] clearly outweighed the public interest in the non-disclosure” in terms of Article 10 [para. 70]. The Court held that the Court of Appeal had failed to do so. It found that the length of time – sixteen months – and geographical scope – the Kyiv city center – of the authorization was so broad that it could have resulted in the logging of Sedletska’s data on occasions which had no relevance to S’s case. In addition, the Court held that the Court of Appeal had merely justified the authorization on the grounds of “’achieving efficiency’ in a criminal investigation and establishing ‘more exactly the time and place’ of the purported confidential meeting” and had not provided reasons for why this outweighed the public interest in not disclosing data [para. 71]. The Court added that, based on the evidence before the Court of Appeal, it was not certain that the information the PGO sought would even have been obtained through accessing Sedletska’s data, and that the Court of Appeal had not examined whether there were more targeted ways to obtain that information.

Accordingly, the Court held that the data access authorization from the Court of Appeal “was not justified by an ‘overriding requirement in the public interest’ and, therefore, necessary in a democratic society” and constituted a violation of Article 10. The Court awarded Sedletska non-pecuniary damages of EUR 4500 and cost and expenses of EUR 2,350.

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