Reference: Application no. 64752/01
Court: European Court of Human Rights
Judge: Zupancic (President), Birsan, Fura-Sandstrom, Gyulumyan, Bjorgvinsson, Berro-Lefevre and Thomassen JJ
Date of judgment: 22 Nov 2007
Summary: Article 10 ECHR – protection of journalistic sources – non-disclosure – freedom of expression – public interest – press freedom
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The applicant (A) had co-written two articles questioning the alleged coincidental uncovering of an arsenal of weapons by Amsterdam police which had led to the prosecution of K, Van S and H. One of the articles included a comment from an unnamed police officer. K, Van S and H appealed their convictions and summonsed A and the co-writer to give evidence as to whether the officer quoted had been aware of and involved in the investigation into K. A refused to identify source and relied upon his right not to do so. The Court of Appeal held that if the quote was true then this could affect the K’s conviction and the integrity of the police and judicial authorities and therefore A should be required to disclose his source. Under threat of possible detention, A confirmed that the officer had been involved in the investigation but refused to reveal the officer’s identity. A was jailed for 30 days for failing to identify the source.
Whether guarding the integrity of the police and/or securing a fair trial for K justified the infringement of A’s Article 10 right.
Finding a violation of Art 10: the interference was prescribed by law and pursued the legitimate aim of prevention of crime, but it did not satisfy the requirement of necessity. The Court reiterated that the protection of journalistic sources was one of the basic conditions for press freedom. Without such protection, sources may be deterred from assisting the press in informing the public on matters of public interest. Requiring disclosure or sources is not compatible with Art. 10 unless it is justified by an overriding public interest. On the facts, failure to obtain A’s evidence did not prevent a fair trial for K and the court did not need to consider whether the duty to provide a fair trial may justify forcing a journalist to disclose his sources. Whilst recognising the member state’s concern about the possible harm to the reputation of the police, the use of improper methods by public authorities was precisely the kind of issue about which the public had the right to be informed.
A point of interest is the government’s argument that the protection of the integrity of the judiciary and the Amsterdam police was relevant to whether the alleged interference pursued a legitimate aim and whether such an interference was necessary. Whilst English law does not allow public authorities to sue to protect their reputations, it is clear that maintaining confidence in the reputation of the police or the courts is a legitimate aim justifying interference with freedom of expression. The question, as it is with most cases, is whether the interference is necessary and proportionate.