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(Oct 20, 2010) On September 14, 2010, the Grand Chamber (GC) of the European Court of Human Rights(ECHR) in Strasbourg issued its judgment in the case of Sanoma Uitgevers B.V. v. the Netherlands and upheld the right of the applicant company not to reveal information to the police which would have disclosed their journalists' sources. (Grand Chamber Judgment Sanoma Uitgevers B.V. v. the Netherlands, (application no. 38224/03) (Sept. 14, 2010), http://www.statewatch.org/news/2010/sep/echr-journal
ist-sources-judgment.pdf
.)

The facts of the case involve an illegal car race which took place in a town in the Netherlands in January 2002. The race was stopped by the police, but no one was arrested at that time. Later, the police suspected that one of the race cars was used on February 1, 2001, as a getaway car in a ram raid (a type of robbery in which a vehicle is rammed into a structure and property is taken), during which a bystander was threatened and a cash point machine was stolen. Journalists from the Dutch magazine publishing company Sanoma attended the 2002 car race to write an article on illegal car racing for the company's magazine Autoweek. The journalists were allowed by the race organizers to cover the event, as long as they did not identify those involved in the race. Journalists were expected to touch up the photographs to prevent identification of individuals and cars and then store the materials on a CD-ROM. (Id.)

The police, acting on their suspicions that one car was involved in the 2001 incident, ordered the applicant to give the CD-ROM to the police. The company refused to do so, in order to protect the confidentiality of their journalistic sources. Eventually, the company was forced to surrender the CD-Rom. In 2003, it filed an application with the ECHR. In March 2009, the Chamber held that there was no violation of article 10 of the European Convention of Human Rights and Fundamental Freedoms pertaining to the freedom of the press (Convention text available from the Council of Europe website, http://conventions.coe.int/treaty/Commun/QueVoulezVo
us.asp?NT=005&CL=ENG
(last visited Oct. 19, 2010)). The Chamber reasoned that even though handing over journalistic sources to the police "might have a chilling effect" on the exercise of journalists' freedom of expression, the public authorities in the Netherlands had the right to balance the conflicting interests at stake, since materials contained on the CD-Rom were relevant to the case and would allow identification of the perpetrators of the crime committed. In September 2009, the applicant company requested that the case be referred to the GC for review. (GC Judgment, supra.)

On September 14, the GC found that ordering the applicant company to surrender its confidential sources was an interference with the company's right of freedom to receive and impart information protected under article 10; moreover, the GC found that the interference was not "prescribed by law," even though it was based on the Netherlands Code of Criminal Procedure. The GC stated that orders to reveal sources had an adverse effect not only on the sources but also on the reputation and credibility of the newspaper or other publishing companies ordered to disclose confidential sources. (Id.)

The GC continued that the most important safeguard was the review by a judge or other independent body to assess whether the need to protect the public overrode respect for confidentiality of journalistic sources. Such a review would be based on clear criteria, including an assessment of whether a less intrusive measure could be used. In the case of the Netherlands, such a decision was entrusted to the public prosecutor, rather than a judge. The GC opined that the public prosecutor was a "party" and therefore could not be deemed impartial. The GC held that the law was deficient, since it did not provide a procedure with sufficient legal safeguards available to the applicant company to ensure an independent review as to whether the interest in the criminal case overrode the interest in protecting the confidentiality of journalistic sources. (Id.)

Author: Theresa Papademetriou More by this author
Topic: Freedom of the press More on this topic
Jurisdiction: European Court of Human Rights More about this jurisdiction

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Last updated: 10/20/2010