Full case report
Sanoma Uitgevers BV v Netherlands
Reference Application no. 38224/03
Court European Court of Human Rights
Judge Casadevall, President; Bîrsan, Gyulumyan, Myjer, Ziemele, López Guerra and Power, judges
Date of Judgment 31 Mar 2009
Human rights – Freedom of expression – Article 10, European Convention on Human Rights – Protection of journalistic sources – Investigation of crime – Photographs
Journalists employed by S photographed an illegal street race, their attendance having been permitted by the organisers on condition that they did not disclose the identities of participants. Police asked S to surrender the photos. S refused. The public prosecutor issued a witness summons requiring S to surrender the photographs. S again refused. The duty investigating judge then expressed the view that the needs of the criminal investigation outweighed the applicant company’s journalistic privilege and, under protest, S surrendered the photos.
S then sought orders that the photos be returned and the police destroy any copies. The police explained in court that the photos were needed for the investigation of a series of robberies. The court granted return of the photos but no more and ruled the police’s actions lawful. S’s appeal was dismissed.
S contended that their Article 10 rights had been violated as they had been compelled to give up information that identified their sources.
Whether the actions of the police, in requiring S to surrender photographs which identified their sources, amounted to a violation of Article 10 of the European Convention on Human Rights.
Finding no violation of Article 10:
Protection of journalistic sources is one of the basic conditions for press freedom, but domestic authorities are not prevented from balancing the conflicting interests served by prosecuting the crimes concerned against those served by the protection of journalistic privilege. Relevant considerations will include the nature and seriousness of the crimes in question, the precise nature and content of the information demanded, the existence of alternative possibilities to obtain the necessary information, and any restraints on the authorities’ obtention and use of the materials concerned. Here the crimes were serious and the photos relevant and capable of identifying the perpetrators; no reasonable alternative source of this information was available; and the photos were used only in respect of investigating the robberies. Further, although it was not required, the public prosecutor obtained a judge’s approval prior to seizing the material.
The Court was split by four to three in its decision. Even the majority found the lack of any legal requirement for prior judicial approval for the seizure of journalistic material “disquieting” and criticised the police for their “lack of moderation”. The dissenting judgment, written by the Irish member of the Court, Ann Power, was much more critical and did not accept, as the majority did, that the police would not have been able to identify the vehicle used in the robberies in any other way. She concluded that this decision “merely wags a judicial finger in the direction of the Netherlands authorities but sends out a dangerous signal to police forces throughout Europe.”
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