Sanoma Uitgevers BV v Netherlands
Reference: Application no. 38224/03
Court: European Court of Human Rights (Grand Chamber)
Date of judgment: 14 Sep 2010
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 which were masked upon publication. Police asked S to surrender the photos when they later realised that a car may have been used in a raid. 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.
In January 2009 the European Court by a narrow margin found no violation of Article 10. In September 2009 the case was referred to the Grand Chamber.
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.
Unanimously finding a violation of Article 10;
The domestic procedure for the seizure of journalistic source material lacked procedural safeguards to the extent that the prosecutor’s requirement that the applicant provide the material was not “prescribed by law.” Adequate safeguard would be the guarantee of the review of the contemplated seizure by a judge or other independent and impartial decision-making body. The investigating judge in this case was acting only in an “advisory role” at the time of the handover.
The Grand Chamber re-emphasised the need for procedural safeguards before a “source disclosure order” is made. The court stressed that the protection of journalistic sources was a principle of such importance that procedural safeguards regulating seizures of source material by authorities must be commensurate. The decision underlines the warnings given in the dissenting judgments in the 2009 decision that unregulated seizures of journalistic source material by police was a matter of grave disquiet.