A cornerstone of freedom of the press depends on the right of journalists to protect their sources. Not even Europe's governing institutions can circumvent this right by accusing journalists of bribery and inducing national police to search files to identify informants.
White & Case recently argued just such a case before the European Court for Human Rights (ECHR) in Strasbourg and its judgment of November 27, 2007 represents a major victory for freedom of the press. The ECHR agreed with our argument that a police raid in March 2004 on journalist Hans-Martin Tillack's home and office and the seizure of virtually all his professional documents and equipment was legally unjustified, as its only motivation was to identify his sources within the European Commission's Anti-Fraud Office (OLAF). This ruling represented the culmination of a three-year fight by the White & Case team, which has represented Tillack since the police raid and on a pro bono basis since 2006.
"This is a bright day for the protection of fundamental rights of freedom of expression," said Ian Forrester, who co-led the team with Thierry Bosly. "We have been fighting this case not just in support of the rights of Mr. Tillack, but for all EU citizens. The principle established by the case indisputably supports press freedom and immunity from scrutiny of sources and the accountability of the watchdogs of the European Commission to judicial scrutiny."
Background to OLAF's Dispute with Tillack
Starting in 2002, Tillack, then the Brussels correspondent for the German magazine stern, wrote a series of articles exposing the existence of longstanding and possibly widespread fraud at the Statistical Office of the European Communities, an agency responsible among other things for producing the macroeconomic data upon which the European institutions rely. Senior OLAF officials did not want these facts made public. To discredit Tillack's work, OLAF embarked on a defamation campaign that continued to this year, accusing him of obtaining the information by bribing an EU official, when it was in fact being provided voluntarily by staff who were displeased that fraud was occurring. When Tillack took his case before the European Ombudsman, OLAF not only made false allegations regarding his alleged bribery offenses but in another abuse of power, it also chose to ignore the findings of the Ombudsman that Tillack had not committed bribery, and issued another press release defaming him. When these intimidation tactics did not stop him from publishing, OLAF used the bribery allegations to arrange for the Belgian police to raid Tillack's home and office. During the raid the police seized his computers and documents, and held him for 11 hours without access to family or legal counsel. As the ECHR decision subsequently stated, since there was no real evidence of bribery, "when the searches at issue…took place, it is evident that [OLAF's] goal was to discover the source of the information reported by the applicant in his articles." Not surprisingly, Tillack has never been charged with bribery or any other criminal offense since there was no evidence against him.
Litigation in National and EU Courts
In response to this gross abuse of power and the violation of his rights as a journalist, Tillack took his case before all the appropriate Belgian courts, doing his ethical duty to protect his sources. He was denied recourse at all turns. At the time of these actions, Belgium did not have any laws upholding the rights of journalists to protect their sources, and so our actions up to the Belgian Supreme Court on Tillack's behalf were dismissed (Belgium adopted legislation to protect journalists in 2005, partly in reaction to the Tillack case).
In a parallel move, we also took the case before the Court of First Instance of the European Communities in Luxembourg (CFI), the tribunal that hears appeals against Commission decisions in antitrust and other fields. We first sought an interim injunction to bar OLAF from using the seized information to detect Tillack's sources. In the main proceedings, we asked for the annulment of OLAF's decision to forward demands for an immediate investigation of Mr. Tillack to the Brussels and Hamburg prosecuting authorities in February 2004, and for compensation for the injury caused by OLAF's false accusation. The CFI dismissed our actions, finding that OLAF's requests were not formal decisions and not legally binding, so the Belgian authorities had discretion as to how to respond to them. On this theory, there was no direct causal link between the Commission's measure and the injury caused to Tillack, although Article 10 EC Treaty imposes a duty on EU Member States to cooperate with the Commission.
Decision of the ECHR
Because Tillack had failed to obtain redress in Belgium against the Belgian authorities, and before the CFI against OLAF, his only hope of fulfilling his ethical duty of protecting his sources was an action against Belgium before the ECHR, Europe's last bastion for the protection of press freedom and other human rights. We were not sure whether the Court would accept that it was Belgium that was responsible for Tillack's problems, as Belgium had acted pursuant to a Commission instruction (and a misleading one). If the Court had taken this view, the result would have been a gap in the European system of legal redress, as no party could be held responsible for what was clearly a blatant breach of press freedom. However, the ECHR chose instead to respond by ruling unanimously in favor of Tillack and all EU journalists. The Court stated: "Protection of journalists' sources is 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." The ECHR also completely cleared Tillack of the bribery allegations, stating that "the suspicions that the applicant had engaged in bribery were based purely on rumors" and "there was therefore no overriding public order imperative which could justify" his treatment by the Belgian authorities. The Court awarded him damages of €10,000 and also ordered Belgium to pay him €30,000 costs, on the basis that his right to freedom of expression, as guaranteed by Article 10 of the European Convention on Human Rights, had been violated.
"We are enormously pleased with this verdict, not for the monetary damages awarded, but because of the statement it makes in favor of human rights. We are glad we took the decision to fight the case through every available instance until Mr. Tillack finally won justice," said Thierry Bosly.