National Security, Privacy, Data Protection and Retention
Serb. Law on Military Security Agency and Military Intelligence Agency, Articles 13.1, 16.2. (2012)
Closed Expands Expression
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In the case of Telegraaf Media Nederland Landelijke Media v. the Netherlands, the Third Section of the European Court of Human Rights (ECtHR) held that the Netherlands had violated the rights of a newspaper company and of two journalists under Article 8 (private life) and Article 10 (freedom of expression) of the European Convention on Human Rights (ECHR). The newspaper had published several articles, co-written by the two journalists, which reported on the contents of leaked documents from the Dutch secret services (“AIVD”) about completed investigations into the (network of) drugs and weapons dealer Mink K. Between 1997 and 2000. The AIVD had undertaken an investigation into allegations of corruption of public officials by Mink K. but had found no proof. The newspaper articles reported that the files concerning this investigation had been obtained from criminal contacts. It was also suggested that they had been circulating among criminals in Amsterdam for a long time. As a response to the publications, the AIVD started an investigation into the journalists and used surveillance measures against them to discover the leak from within the secret services. Moreover, the Public Prosecution Service issued an order against the newspaper company to surrender the original documents so as to withdraw them from public circulation. The newspaper and the journalists, however, complained that both measures were in fact aimed at uncovering their journalistic source. With regard to the surveillance measures, the ECtHR accepted that it had been one of the AIVD’s purposes – albeit not the main one – to identify the person(s) who had supplied the secret documents to the journalists and concluded that the statutory basis invoked did not provide appropriate safeguards against such targeted surveillance of journalists (indirectly) aimed at discovering their sources. There had accordingly been a violation of Article 8 in conjunction with Article 10 ECHR. With respect to the surrender order, the ECtHR ruled that the order had lacked “relevant and sufficient” reasons and thus failed the “necessary in a democratic society”-test to justify the interference with Article 10 ECHR.
The first applicant, Telegraaf Media Nederland Landelijke Media B.V. (hereafter: “Telegraaf” or “the newspaper company”), is a limited liability company under Dutch law. Its business includes publishing the mass-circulation daily newspaper De Telegraaf. The second and third applicants, Mr Joost de Haas and Mr Bart Mos respectively, are Dutch journalists (hereafter: “De Haas and Mos” or “the journalists”).
In January 2006, De Telegraaf published several articles co-written by De Haas and Mos about State secrets obtained by the Dutch secret services (“AIVD”) which appeared to have come to the knowledge of criminals. The articles mentioned details about AIVD-investigations from the late 1990s, including former informants’ code names. According to the journalists, copies of the documents had been returned to the AIVD. In response to the publications, the AIVD lodged a criminal complaint concerning the unlawful disclosure of State secrets.
On 26 January 2006, the National Police Internal Investigations Department issued an order to Telegraaf for the surrender of the original documents containing the State secrets. The newspaper company lodged an objection to the order with the Regional Court of The Hague, invoking its journalistic privilege against the disclosure of sources. It feared that the examination of the original documents would lead the AIVD or the Public Prosecution Service to the journalistic source as they might contain fingerprints. The Regional Court, however, dismissed the objection on the grounds that the journalists had “not been required to give their active co-operation to the investigation into the identity of the source” and that “any sanctioning of the Public Prosecution Service’s actions in the present case [would] not hinder any future exchange of information between [the newspaper] and its sources” [para. 23]. The newspaper’s appeal on points of law was dismissed by the Dutch Supreme Court in 2008.
On 7 June 2006, the newspaper company and the journalists initiated civil proceedings against the State, seeking provisional measures regarding the alleged telephone tapping and observation of De Haas and Mos, presumably by AIVD agents. They argued that the use of such special powers was unlawful, since it lacked a legal basis and, moreover, disregarded the requirements of subsidiarity and proportionality as they in fact targeted the journalistic source instead of the journalists themselves. The State refused to confirm or deny the use of special powers since that would entail the disclosure of information on specific AIVD operations and potentially threaten national security. Proceeding on the assumption that the State had indeed used surveillance measures, the Provisional Measures Judge in first instance held that such use was contrary to Article 10 ECHR and ordered provisional measures. Both the Court of Appeal and the Supreme Court, however, ultimately held that the protection of journalistic sources is not absolute and that surveillance measures targeted at journalists cannot be excluded on principle [para. 25-33].
In November 2006, the journalists were questioned as witnesses in criminal proceedings against three individuals suspected of divulging the State secrets outside the AIVD. Both journalists refused to answer questions which would potentially give away the identity of the person(s) from whom they had received the documents. The journalists were initially detained for failure to comply with a judicial order but were released three days later as the Regional Court of The Hague recognized the importance of the protection of journalistic sources. The Regional Court was also of the opinion that State security was in fact not endangered since the leak within the AIVD had become widely known through media reporting. Eventually, one suspect (“H”) was convicted for leaking the files. The judgment mentioned that the documents seized from Telegraaf had been examined by the Netherlands Forensic Institute but that no traces had been found [para. 34-37].
On 15 November 2006, the Supervisory Board for Intelligence and Security Services concluded that the AIVD’s decisions to use special powers against the journalists for its investigation into the information leak had been lawful [para. 38-43].
On 29 December 2006, Telegraaf, De Haas and Mos lodged an application against the Kingdom of the Netherlands (hereafter: “the Netherlands” or “the Government”) with the European Court of Human Rights (ECtHR) under Article 34 of the European Convention on Human Rights (ECHR). All three applicants alleged a violation of Article 10 ECHR in that “measures including the use of special powers had been taken against them in order to identify their journalistic sources” [para. 3]. In addition, the journalists alleged that “they had been victims of violation of Article 8 of the Convention resulting from the use of special powers of surveillance” [para. 3].
Judge Josep Casadevall (Section President) delivered the judgment of the Third Section of the ECtHR (hereafter: “the Court”).
The main issue before the Court was whether the Netherlands had violated Article 8 and Article 10 ECHR by using surveillance powers and by ordering the surrender of the original documents.
The Government recognized that the surveillance measures had interfered with the journalists’ rights under Articles 8 and 10 ECHR but argued that the interference was justified (i.e., prescribed by law, with a legitimate aim and necessary in a democratic society) [para. 67-79]. De Haas and Mos complained that if they themselves had not been “targets” of the surveillance measures, the use of these measures against them had lacked a statutory basis, since there was only a statutory basis for surveillance specifically targeted at them. They also argued that even if there had been a formal legal basis, the safeguards against abuse were insufficient given that there was no prior judicial review of the use of special powers. Lastly, the journalists did not see why the surveillance measures had been “necessary in a democratic society”, bearing in mind that the documents related to investigations that were completed six years ago; that important details on informants or procedures had not been revealed; and that the information had been known in criminal circles for a long time already [para. 80-83].
Importantly, questions raised by surveillance measures are usually considered under Article 8 ECHR alone, but in the present case the measures were so intertwined with Article 10 that the Court found it appropriate to consider the matter under Articles 8 and 10 concurrently [para. 88].
The Court accepted that the main purpose of the AIVD’s investigation had been to discover and close the leak of secret information; the identification of the person(s) who had supplied the secret documents to the journalists appeared to have been subordinate to that aim. At the same time, however, the Court emphasized that a journalistic source can be identified relatively easily. Referring to Recommendation No. R(2000)7 on the right of journalists not to disclose their sources of information; Sanoma Uitgevers B.V. v. the Netherlands, no. 38224/03, 14 September 2010; Weber and Saravia v. Germany, no. 54934/00, 29 June 2006, Roemen and Schmitt v. Luxembourg, no. 51772/99, 25 February 2003; Ernst and Others v. Belgium, no. 33400/96, 15 July 2003; and Tillack v. Belgium, no. 20477/05, 27 November 2007, the Court recalled that “information identifying a source” includes – as far as they are 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. 86]. Considering these definitions, the Court found that the AIVD, by using its surveillance powers on the journalists, had circumvented the protection of a journalistic source [para. 87].
Concerning the question of whether the established interference with Articles 8 and 10 ECHR was “prescribed by law”, the Court reiterated its case-law according to which the impugned measure must have some basis in domestic law, which should not only be accessible and foreseeable as to its effects, but also provide protection against arbitrary interference by public authorities, especially where powers are exercised in secret (see Weber and Saravia; Segerstedt-Wiberg and Others v. Sweden, no. 62332/00, 6 June 2006; Liberty and Others v. the United Kingdom, no. 58243/00, 1 July 2008; and Kennedy v. the United Kingdom, no. 26839/05, 18 May 2010) [para. 90]. In the case at hand, the statutory basis for the interference had been section 6(2)(a) of the 2002 Intelligence and Security Services Act. The Court concluded that the law had been accessible and its effects foreseeable, as the journalists “could not reasonably [have been] unaware that the information which had fallen into their hands was authentic classified information that had unlawfully been removed from the AIVD, and that publishing it was likely to provoke action at discovering its provenance” [para. 93]. With regard to the available safeguards, the Court first observed that the present case clearly differed from older ECtHR-cases in that “it is characterized precisely by the targeted surveillance of journalists in order to determine from whence they have obtained their information” [para. 96]. It emphasized that “in a field where abuse is potentially so easy in individual cases and could have such harmful consequences for democratic society as a whole, it is in principle desirable to entrust supervisory control to a judge” or to another “independent body” (see Klass and Others v. Germany, no. 5029/71, 6 September 1978; Kennedy; Weber and Saravia; and Sanoma) [para. 98]. Retrospective judicial review is not sufficient since this cannot prevent the very disclosure of the identity of a source [para. 99]. In the instant case, the use of special powers appeared to have been authorized by the Minister of the Interior and Kingdom Relations, or by the head of the AIVD, in any case “without prior review by an independent body with the power to prevent or terminate it” [para. 100]. The Court stressed that “review post factum”, for example by the Supervisory Board, “cannot restore the confidentiality of journalistic sources once it is destroyed” [para. 101]. In view of the foregoing, the Court concluded that the 2002 Intelligence and Security Services Act did not provide appropriate safeguards against targeted surveillance of journalists aimed at discovering their journalistic sources [para. 102]. As the interference failed the “prescribed by law”-test, there had been a violation of Article 8 juncto 10 ECHR.
As for the surrender order against the newspaper company, the Government submitted that the interference had had a statutory basis in Article 96a of the Code of Criminal Procedure and had been assessed by a court. The Government further stated that the surrender order had pursued legitimate aims of ensuring national security/prevention of crime, and had been necessary in a democratic society, not only because of the importance of returning State secrets to the AIVD and finding out who had had access to the documents, but also because of the safety of two former informants and their families. Finally, a surrender order had appeared less intrusive than a search of the journalists’ premises (see Roemen and Schmit and Ernst and Others) [para. 106-114]. The newspaper company and the journalists argued in response that for the Government, the main purpose of the surrender order could not have been other than to subject the documents to technical examination in order to identify the journalistic source. Source identification may have a detrimental effect on the newspaper company as it would no longer be trusted by potential other sources. This in turn could negatively affect the public’s interests in receiving information imparted through anonymous sources [para. 115-117].
The Court observed that the surrender order had interfered with the newspaper company’s freedom to receive and impart information under Article 10 ECHR. It did, however, consider that the interference was prescribed by law, since the order had a statutory basis and procedural safeguards had been applied (i.e., the documents were placed in a sealed container by a notary and kept in a safe pending the outcome of objection proceedings) [para. 118-121]. It was also not in dispute that the surrender order had pursued the legitimate aims of ensuring national security and the prevention of crime [para. 122].
The Court then conducted the “necessity in a democratic society”-test and reiterated the standard requirements of a “pressing social need”, “proportionality” and “relevant and sufficient reasons” for the interference (see The Sunday Times v. the United Kingdom, (no.2), no. 13166/87, 26 November 1991) [para. 123]. It mentioned the task of the press as purveyor of information and “public watchdog” (thereby citing Barthold v. Germany, no. 8734/79, 25 March 1985, Lingens v. Austria, no. 9815/82, 8 July 1986; Thorgeir Thorgeirson v. Iceland, no. 13778/88, 25 June 1992; Cumpǎnǎ and Mazǎre v. Romania, no. 33348/96, 17 December 2004; Voskuil v. the Netherlands, no. 64752/01, 22 November 2007; and TV Vest AS and Rogaland Pensjinistparti v. Norway, no. 21132/05, 11 December 2008) and recalled the journalist’s duty and responsibility to act in good faith in order to provide accurate and reliable information in accordance with the ethics of journalism (citing Fressoz and Roire v. France, no. 29183/95, 21 January 1999; Bladet Tromsø and Stensaas v. Norway, no. 21980/93, 20 May 1999; and Financial Times Ltd. and Others, no. 821/03, 15 December 2009). On the aspect of protection of journalistic sources, the Court stressed that this is one of the basic conditions for press freedom in a democratic society (referring to Recommendation No. R(2000)7) and that “without such protection, sources may be deterred from assisting the press in informing the public on matters of public interest, as a result of which the vital public-watchdog role of the press may be undermined.” Therefore, an order of source disclosure cannot be compatible with Article 10 ECHR “unless it is justified by an overriding requirement in the public interest” (Goodwin v. the United Kingdom, no. 17488/90, 27 March 1996; Voskuil; Financial Times Ltd. And Others; and Sanoma) [para.127].
In applying these principles, the Court found that the AIVD had not given “relevant and sufficient” reasons for the interference. The need to identify the AIVD official who leaked the files could not alone justify the order to surrender the original documents, especially as the Public Prosecutor had admitted that the culprits could simply be found by studying the contents of (the copies of) the documents and by connecting them to the officials who had access to the files [para. 129]. The aim of withdrawing the documents from public circulation was neither sufficient to constitute “an overriding requirement in the public interest” justifying the disclosure of the journalistic source, notably because withdrawal would no longer prevent the information from falling into the wrong hands – it had most likely fallen into the hands of criminals already (compare The Sunday Times, Observer and Guardian v. the United Kingdom, no. 13585/88, 26 November 1991 and Vereniging Weekblad Bluf! v. the Netherlands, no. 16616/90, 9 February 1995) [para. 130-131]. Lastly, the Court held that the actual handover of the documents had not been necessary, considering that a visual completeness-inspection followed by destruction of the documents would have sufficed [para. 131]. In light of these reasons, the Court concluded that there had been a violation of Article 10 ECHR.
In conclusion, the Court unanimously held that the Netherlands had violated the rights of the two journalists under Article 8 (private life) in conjunction with Article 10 (freedom of expression) ECHR by using special powers of surveillance against them and held by majority vote that the Netherlands violated the rights of the newspaper company under Article 10 ECHR by issuing an order to surrender documents capable of identifying journalistic sources. Accordingly, the Court ordered the Netherlands to pay the applicants EUR 60,000 in respect of costs and expenses.
Judges Myjer and López Guerra together wrote a partly dissenting opinion on the Court’s judgment, as they believed that the surrender order could not be considered to have violated Article 10 ECHR. The dissenting judges emphasized that the AIVD, which held title to the documents that were criminally removed from the institution, could determine the reasons for which to demand the return of the documents (i.e., to their legal owner). According to the dissenters, the fact that the files had come into the possession of the press, did not affect the right of the owner of the documents [para. 3-5]. With reference to earlier case-law (Handyside v. the United Kingdom, no. 5493/72, 7 December 1976 and Otto Preminger-Institut v. Austria, no. 13470/87, 20 September 1995) in which the Court had held “that Article 10 cannot be interpreted as prohibiting the forfeiture in the public interest of items whose use has lawfully been adjudged illicit”, the judges found it by no means unreasonable that the authorities had refused the newspaper’s offer to destroy the documents and concluded that the State was entitled to have the possession of the original documents restored to it [para. 9].
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The decision expands freedom of expression. The Court emphasized the importance of procedural safeguards when surveillance measures are (indirectly) aimed at the discovery of a journalistic source, thereby requiring ex ante supervisory control by a judge or another independent body. The Court also set a high bar for the “overriding requirement in the public interest”, considering that withdrawing documents with secret information from public circulation in the interest of national security is as such not a relevant and sufficient reason to justify the disclosure of a journalistic source.
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