Reference: Application no. 77551/01
Court: European Court of Human Rights
Judge: Sir Nicholas Bratza (President), Casadevall, Wildhaber, Pellonpaa, Maruste, Borrego Borrego, Sikuta (Judges) O'Boyle (Section Registrar)
Date of judgment: 25 Apr 2006
Summary: Human rights - Freedom of expression - Article 10 ECHR - Confidential information - Data about criminal convictions - Procured by journalist - Disclosed to police officer - Not published - Official secrets legislation - Source and journalist convicted - Whether convictions necessary and proportionate - Breach of Article 10
D was a journalist covering crime stories. There was a robbery of 34 million euros from a Zurich post office. Several people were arrested. Armed with a list of these, D phoned the prosecutor’s office and asked whether any of them had convictions, particularly for the use of stupefying drugs. In the absence of any prosecutor an administrator, Z, agreed to provide these details. D faxed his list. Z consulted the computer, annotated the list to show which names had such convictions against them and faxed it back. D did not publish or use the information but told a police officer about it. The officer reported the matter and D and Z were prosecuted and convicted of procuring and disclosing official secrets. Z lost her job. D was fined 325 Euros. He complained of a violation of his Article 10 rights.
Were the conviction and sentence in accordance with Article 10 of the Convention? (1) Did they pursue a legitimate aim, and (2) were they necessary and proportionate?
(1) The laws in question pursued the legitimate aim of protecting confidential information. It was unnecessary to decide whether the government was right to say they also protected ‘the reputation and the rights of others’. (2) The conviction and penalty were not related to the legitimate aim, necessary or proportionate. Restrictions on pre-publication media activities not only fall within the scope of Art 10, they present great dangers calling for close scrutiny by the court. Details of criminal convictions are worthy of protection but this was public domain information, accessible – albeit at greater cost – by other means, such as law reports and press cuttings. Hence it was not ‘confidential information’ within the meaning of Art 10(2). Moreover, the information related to a matter of public interest; it was the task of the state, not D, to protect truly confidential information; and no damage was caused to the suspects whose details were disclosed.
It is often said that Strasbourg judgments do not involve the parallel analysis of the rights under Articles 8 and 10 which now has to be carried out domestically, where privacy clashes with freedom of expression (see, for example, Lady Hale in Campbell v MGN Ltd). However, this case exemplifies just such a balancing exercise. The approach to the public domain is also of interest, using accessibility rather than actual public knowledge as the criterion. The domestic authorities take varying positions on the issue. See the discussion of this point in The Law of Privacy and the Media at para 6.62-6.63, 6.101-103.