Rulings in two foreign courts--the Grand Chamber of the European Court of Human Rights (ECHR) and the Canadian Supreme Court--favored journalists' rights to protect confidential sources in fall 2010.
European Court Rules Arrest and Search Violate Human Rights
In a September 14 decision, the ECHR ruled that law enforcement authorities in the Netherlands violated a magazine's rights to "journalistic freedom of expression" when they forced the magazine to hand over photographs of an illegal street race after arresting the magazine's editor and threatening to close its offices in order to search them. Sanoma Uitgevers B.V. v. the Netherlands, App. No. 38224/03 (Eur. Ct. H.R. Sept. 14, 2010)
The case arose after journalists from Autoweek attended the race, near a small town outside of Amsterdam in January 2002. Race participants allowed the journalists to take photographs on the condition that participants' identities of would remain undisclosed. Police were present at the race and eventually closed it down, but no arrests were made, according to the court opinion.
On Feb. 1, 2002, six days before Autoweek published its story about the race, police contacted the magazine and demanded that it hand over copies of its photos. When editors refused the request by phone, police detectives went to the magazine company's offices and served them with a summons issued by Amsterdam's public prosecutor. Under Netherlands law, a summons to produce materials in connection to a criminal investigation does not have to be approved by a judge. When the magazine's editor in chief continued to refuse to produce the photographs, he was placed under arrest and police threatened to shut down the offices of Sanoma Uitgevers, Autoweek's publisher, while they removed all computers and searched them and the building for the photographs. The ECHR noted that the closure would have limited the ability of Sanoma Uitgevers' dozens of other magazines and 180 websites to cover the February 2 wedding of the Netherlands' Crown Prince. After negotiations with prosecutors, as well as a phone call to a judge, the magazine's lawyers surrendered the photographs "under protest" at 1:20 a.m. on February 2.
The magazine lodged a complaint with the Regional Court in the Netherlands, asking that the seizure be ruled unlawful, the photos returned, any copies in police possession destroyed, and any evidence based on their content be ruled inadmissible. In a Sept. 5, 2002 hearing, the public prosecutor revealed that the summons had been issued not because of the street race but because authorities believed that a car used by some of its participants might have been used in a series of robberies. Ultimately the court ordered the photos returned, but declined to invalidate the seizure. The Netherlands Supreme Court declined to hear an appeal, ruling that the Code of Criminal Procedure did not allow a declaratory ruling that the seizure or the use of the seized item was unlawful once it had been returned.
The ECHR was established by the European Convention on Human Rights which was adopted by the Council of Europe in 1953. Individuals or nations who claim that a Council member has violated the Convention can file an appeal with the Court. The publisher's complaint to the ECHR argued that the search violated Article 10 of the Convention, which states, "everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority" and that "the exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society." A seven-judge panel of the ECHR ruled 4 to 3 in March 2009 that no violation of the Convention had occurred. Despite "a regrettable lack of moderation" demonstrated by police and prosecutors, the Court said, domestic courts were entitled to balance the interests of preventing crime with the need to protect journalists' sources, and the crime in this case was serious enough to justify interfering with publishers' rights, especially since there was no other way to identify perpetrators.
On Sept. 14, 2010, the 17-judge Grand Chamber of the Court--which is the ECHR's "court of last resort"--reversed the lower panel's ruling. The Court focused primarily on the fact that Netherlands law does not require judicial oversight for the issuance of the summons, which could impose a "chilling effect" on journalists and their sources, even where no search or seizure is actually executed.
The Court observed that "in its earlier case-law [it] has found various acts of the authorities compelling journalists to give up their privilege and provide information on their sources or to obtain access to journalistic information to constitute interferences with journalistic freedom of expression." It cited Goodwin v. United Kingdom, 123 Eur. Ct. H.R. (1996), in which the Court established the "vital public interest in the protection of the ... journalist's source" as well as Roemen and Schmit v. Luxembourg 102 Eur. Ct. H.R. (2003), Ernst v. Belgium 359 Eur. Ct. H.R. (2003), and Tillack v. Belgium App. no. 20477/05, Eur. Ct. H.R. (2007), where "the Court found that searches of journalists' homes and workplaces ... constituted interferences with their rights guaranteed by paragraph 1 of Article 10."
The Court also observed that the Netherlands trial court had ruled that the government's interest should outweigh the journalists' rights "more so as the undertaking to the journalistic source concerned the street race whereas the investigation did not concern that race," and instead involved "grave crimes." The Court said it "does not consider this distinction to be crucial" because the serious of the underlying case was "irrelevant for the purposes of determining whether there has been an interference with the right of journalists" to protect their sources.
The Court continued: "While it is true that no search or seizure took place in the present case ... a chilling effect will arise wherever journalists are seen to assist in the identification of anonymous sources" because sources will be unwilling to trust promises of confidentiality in the future. The Court added, "News is a perishable commodity and to delay its publication, even for a short period, may well deprive it of all its value and interest."
The Court said that the decision to compel journalists to disclose their confidential source should be made by a judge, rather than a prosecutor who "is a 'party' defending interests potentially incompatible with journalistic source protection and can hardly be seen as objective and impartial so as to make the necessary assessment of the various competing interests." The deciding judge should apply "clear criteria, including whether a less intrusive measure can suffice to serve the overriding public interests established," the Court said.
The Netherlands argued that it met the necessary threshold because a judge had been consulted before the photographs were turned over and the Regional Court had ruled on the magazine's appeal, but the Court rejected this argument. There was a "lack of any legal basis for the involvement of the investigating judge" who was consulted the night the summons was issued, the Court observed, since the Netherlands Criminal Code does not require it. "Being nowhere required by law, it occurred at the sufferance of the public prosecutor," the Court said.
"Secondly," the Court continued, "the investigating judge was called in what can only be described as an advisory role. Although there is no suggestion that the public prosecutor would have compelled the surrender of the CD-ROM in the face of an opinion to the contrary from the investigating judge, the fact remains that the investigating judge had no legal authority in this matter. ... Thus it was not open to him to issue, reject or allow a request for an order, or to qualify or limit such an order as appropriate."
On the issue of the post-disclosure appeal, the Court said "it is clear ... that the exercise of any independent review that only takes place subsequently to the handing over of material ... would undermine the very essence of the right to confidentiality."
News media supporters praised the ECHR ruling. Geoffrey Robertson QC, counsel for a coalition of intervening news media and advocacy groups, called the ruling "an acid test for the Court and for media freedom across Europe," according to international free expression advocacy group Article 19 on September 16. Robertson said the ruling "sets a high benchmark for protection of journalistic materials and will force police and prosecutors across Europe, from Russia to France, to change their practices."
Article 19 reported that intervening organizations included itself, the Media Legal Defence Initiative, the Committee to Protect Journalists, Guardian News and Media Limited, and the Open Society Justice Initiative. Support also came from The Associated Press, Bloomberg News, the European Newspaper Publishers Association, Condé Nast Publications, Hearst Corporation, the National Geographic Society, the New York Times Company, Reuters, Time Inc., the Washington Post Company, and the World Association of Newspapers and News Publishers, Article 19 said.
Canadian High Court Extends Privilege to Journalist Testimony and Civil Cases
The Supreme Court of Canada ruled on October 22 that a journalist's privilege--a right to protect confidential sources from disclosure--can extend to testimony in civil cases, not just subpoenas for documentary evidence in criminal investigations. Globe and Mail v. Canada, 2010 SCC 41 (Can.)
In May 2010, the Court ruled in R. v. National Post, 2010 SCC 16 (Can.) that although journalists do not have a constitutional right to shield the identity of their sources, a privilege can be applied on a case-by-case basis through a four-part balancing test called "the Wigmore criteria." The National Post case involved a criminal investigation by the Royal Canadian Mounted Police, and a search warrant seeking possibly forged bank documents. For more on that case, see "Canadian Justices Say No to Privilege, Yes to Publication Ban" in the Summer 2010 issue of the Silha Bulletin.
The Globe and Mail case was distinguished from the National Post case because it involved the law of Quebec, which uses a civil code system rather than a common law system, and also because it involved a reporter having been called to personally testify and disclose confidential sources in the context of a civil trial. The underlying case involved a dispute over government funds issued to, and allegedly misused by, media corporation Le Groupe Polygone Editeurs Inc. Pursuant to its defense against the allegations, Groupe Polygone subpoenaed Globe and Mail reporter Daniel Leblanc to testify and disclose a confidential source for his reporting on the scandal. Groupe Polygone also sought and received a judicial order banning Leblanc from reporting any further stories on the scandal, including details about confidential settlement negotiations between it and the Attorney General of Canada. The trial court judge refused to recognize the existence of a journalist-source privilege and the newspaper's objections were dismissed. The Quebec Court of Appeal declined to hear the Globe and Mail's appeal on the issue of privilege, and dismissed the newspaper's attempt to "discontinue" Polygone's suit against the government.
The opinion for a unanimous nine-member Supreme Court, written by Judge Louis LeBel, first rejected the Globe and Mail's argument that the Quebec Charter, roughly equivalent to a state constitution, provides a basis for journalist-source privilege because of provisions that protect freedom of expression, the right to information, and rights for individuals "bound to professional secrecy by law."
Citing the Court's reasoning in National Post, particularly "the difficulty in defining such a 'heterogeneous and ill-defined group of writers and speakers'" LeBel wrote that "freedom of expression under the Quebec Charter cannot constitute the basis for recognizing a class-based, quasi-constitutional journalist-source privilege." The Court also said that although the right to information "can ... inform the protection of the confidential relationship between journalists and their sources, it cannot constitute the basis for recognizing that privilege" because the right conferred by that provision "is limited to the extent that access to information is already provided for by law ... and [therefore] does not broaden the scope of the right, [and] cannot be the source of a quasi-constitutional right to the protection of journalists' sources."
On the issue of the Charter's protection for "professional secrecy," LeBel first observed that journalism is not included in the list of 45 professions subject to the Quebec Professional Code; its inclusion was contemplated but ultimately rejected. Moreover, LeBel wrote that "there is no basis for drawing an analogy between professional secrecy and journalist-source privilege" because "the associations of journalists are not regulated" and because "journalism is not a profession of the type that professional secrecy traditionally purports to protect." The Court's reasoning was based on a definition of "professional secrecy" that requires that there "be a law that imposes an obligation of silence on an individual" and an "obligation" that is "rooted in a helping relationship." The "helping relationship" is described as one "where the beneficiary of the privilege seeks out the professional for personal help or assistance" and "the obligation of confidentiality is 'in the exclusive interest of the person who disclosed [the information], and in the context of a helping relationship.'" Because the legislature did not include journalism in the list of 45 professions subject to professional secrecy, and because "the relationship between journalists and their sources is not one that would often result in such a 'helping relationship,'" LeBel said the protection for professional secrecy does not extend to journalism.
However, the Court also ruled that the common-law "Wigmore criteria" for determining whether journalist's privilege applies to a case can be imported into Quebec's civil law system. Under the four-part test, a court must determine whether the communication "originate[d] in a confidence that the identity of the informant will not be disclosed," whether the confidence is essential to the relationship in which the communication arises, and whether the relationship is one which should be diligently, deliberately, and consciously fostered in the public good. If the first three requirements are met, "the court must last consider whether in the instant case the public interest served by protecting the identity of the informant from disclosure outweighs the public interest in getting at the truth."
The Court observed that "neither the Civil Code nor the Code of Civil Procedure explicitly provides for the recognition in the civil litigation context of journalist-source privilege, which now exists in the common law jurisdictions. A gap in the codified law exists, and the question becomes one of determining the appropriate way of filling it."
The Court ruled that although there is debate over whether judges can apply common-law principles where the civil code does not provide guidance, "the creation of a framework to address these issues represents a legitimate and necessary exercise of the power of the court to interpret and develop the law" and therefore "it is not inconsistent, either in principle or in fact, to give judges the authority to exempt a journalist from testifying, when his ... rights are found to be paramount." Therefore, the Court ruled, "Despite its common law origins, the use of a Wigmore-like framework to recognize the existence of the privilege in the criminal law context, as established in National Post, is equally relevant for litigation subject to the laws of Quebec."
The Court extensively reviewed the Wigmore criteria and provided guidance on their application to civil law: "the relevant considerations ...when a claim to privilege is made in the context of civil proceedings, include: how central the issue is to the dispute; the stage of the proceedings; whether the journalist is a party to the proceedings; and, perhaps most importantly, whether the information is available through any other means." It also said that the Wigmore criteria should apply to the specific circumstances involving Leblanc and the Globe and Mail.
However, the Court declined to decide whether Leblanc's claim of privilege should allow him to refuse to testify, instead ruling to "remit the matter to the Superior Court for a consideration of Mr. Leblanc's claim, in accordance with these reasons."
The Court also overturned the lower court's ban on Leblanc's publishing further stories about the Polygone scandal. LeBel wrote that the lower court should have given both parties an opportunity to submit briefs in support or opposition to the ban. "A publication ban, which by its very nature infringes the constitutional rights of the party against whom it is imposed, cannot, absent extraordinary circumstances not present here, be imposed ex proprio motu," or without hearing from the parties, LeBel wrote. In his analysis of the issue, LeBel said that any confidentiality agreement between parties to a lawsuit "does not, and cannot, extend to the media. Neither Mr. Leblanc nor the Globe and Mail did anything--illegal or otherwise--to obtain the information published in the article." LeBel added, "I am reluctant to endorse a situation where the media or individual journalists are automatically prevented from publishing information supplied to them by a source who is in breach of his or her confidentiality obligations."
The Montreal Gazette, in an October 23 story, said the ruling "boosted" and "reinforced" freedom of the press in Canada. According to the Gazette Leblanc told reporters "The big victory is the recognition of journalistic work, the protection of sources that has to weigh in the balance when these issues are raised in court."
The Globe and Mail reported October 23 that its editor-in-chief, John Stackhouse, said the ruling "set a very high bar for disclosure of sources in investigative journalism," adding that "journalists and their sources don't enjoy blanket protection, but we can continue to pursue investigative journalism, including confidential sourcing, knowing the courts view public interest as paramount."
However, Professor Jamie Cameron of York University's Osgoode Hall Law School told The Globe and Mail she was disappointed that the Court has refused to recognize "the constitutional status of the newsgathering relationship," and that the case-by-case standard was too uncertain for such a critical part of investigative reporting. Cameron said a shield law is needed to "give this confidential newsgathering relationship the legal protection it requires."
Nevertheless, Globe and Mail lawyer William Brock said "the Supreme Court has clearly stated not only that journalistic-source privilege exists in Quebec, but also that a confidential source should only be revealed where it is vital to the integrity of the administration of justice."
- PATRICK FILE
SILHA FELLOW AND BULLETIN EDITOR