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On 22 November 2012, the European Court of Human Rights (“ECtHR”) rendered its judgment in the case between the Dutch newspaper De Telegraaf and its journalists Bart Mos and Joost de Haas versus the Netherlands about the journalistic privilege of non-disclosure. This judgment is the finale of a long drawn-out conflict. The ECtHR held that the Netherlands, by using means of coercion (including telephone tapping and observation) against the two journalists and by demanding the surrender of documents that were in the possession of de Telegraaf, had acted in violation of Article 8 (right to privacy) and Article 10 (freedom of expression and gathering of information) of the European Convention of Human Rights (“ECHR”). This is the third judgment in a row in which the Dutch State was cautioned for the way in which it deals with the journalistic privilege. The previous cases were the Voskuil judgment in 2007 and the Sanoma judgment in 2010.

The Facts

Early 2006, De Telegraaf published an article by Joost de Haas and Bart Mos with the heading “AIVD secrets in possession of drugs mafia”. In the article, the journalists explained that circles around the notorious criminal Mink K. had state secret files of the Dutch General Intelligence and Security Service (“AIVD”) in their possession. The article mentioned in so many words that these documents were in the possession of the journalists.

The State wanted to know who had leaked these secret documents and used various means to find out. In May 2006, it appeared that the AIVD had used its special powers to monitor and observe the journalists since January 2006 and had demanded telecommunications and print data.

In November 2006, the journalists were summoned to appear as witnesses in the criminal case against three persons who were suspected of leaking the information. When the journalists relied on their right of non-disclosure, they were arrested and detained a few days for failure to comply with a judicial order.

Apart from these actions against De Haas and Mos, the State also took action against De Telegraaf. De Telegraaf had the secret documents in its possession and was forced to surrender them to the State.

Various opinions have been published and a jumble of legal proceedings has been conducted about this case. The ECtHR now has the last word, and rules that the actions described above by the Dutch State (and their judicial approval up to the highest instance) are in violation of Articles 8 and 10 of the ECHR (as far as the actions against the journalists are concerned) and Article 10 of the ECHR (as far as the action against De Telegraaf is concerned).

ECtHR’s Opinion on Actions against Journalists: Violation of Art. 8 and Art. 10 ECHR

The State had argued that the use of the AIVD’s special powers against the journalists was not aimed directly at identifying the sources from which the journalists had acquired their information. The AIVD was said to have used these powers only to discover the identity of the AIVD official who had leaked the documents; the journalistic privilege was allegedly not at stake.

The ECtHR did not following this line of reasoning. In the opinion of the ECtHR, the question to be answered is whether information was given that can identify a source. With reference to the Autoweek/Sanoma judgment, inter alia, the ECtHR held that a journalistic ‘source’ is defined as ‘any person who provides information to a journalist’. The ‘information that can identify this source’ also includes the factual circumstances under which the information was acquired, and the information in the unpublished content of the information.

For these reasons, the ECtHR held that the AIVD had used its special powers to circumvent the protection of a journalistic source.

After giving this opinion, the ECtHR investigated whether this interference by the AIVD was “prévue par la loi” (prescribed by law ). The ECtHR points out that in cases where a power of the executive is exercised in secret, the test to be applied should be more strict. After all, “the risks of arbitrariness are evident”. If the executive has powers it can exercise in secret, the ECtHR holds that the law should describe the scope of these powers exactly: “the law must indicate the scope of any such discretion conferred on the competent authorities and the manner of its exercise with sufficient clarity, having regard to the legitimate aim of the measure in question, to give the individual adequate protection against arbitrary interference.”

The ECtHR concluded that the statutory basis for the AIVD’s powers lies in Section 6 (2)(a) and (c) of the Intelligence and Security Services Act 2002 (Wet op de inlichtingen- en veiligheidsdiensten 2002).

In the opinion of the ECtHR, it was foreseeable to De Haas and Mos that after publication the State would interfere to discover the origin of the secret information. Although no explicit statutory provision relates to this situation, the journalists could foresee that if they would publish details from state secret files, a reaction from the State would follow. Thus, the requirement of the State’s interference being foreseeable has been fulfilled.

However, the law must also fulfil the requirements arising from the “rule of law”. This means that the law must provide adequate guarantees against arbitrary use by the executive of its powers. In other words, the law must provide for control over the executive. If the executive is able to exercise its powers in secret, the risks of arbitrariness are increased. Therefore the ECtHR held, also on grounds of earlier case law, that it is in principle desirable to have the courts exercise control over the executive in this context.

The court had not tested the decision to exercise the AIVD’s powers in advance. At the hearing in Strasbourg, the State admitted that Minister Remkes had approved the actions. Consequently, no prior check of the decision by an independent body – let alone by a court – had taken place. This is not altered by the fact that after the AIVD’s actions, various independent bodies – such as the National Ombudsman and the Supervisory Board for Intelligence and Security Services (CTIVD) – have instituted investigations.

For the above reasons, the ECtHR held that Dutch law does not provide safeguards appropriate to the use of powers of surveillance against journalists “with a view to discovering their journalistic sources”: the State has violated Article 8 and Article 10 of the ECHR.

ECtHR’s Opinion on Action against De Telegraaf: Violation of Art. 10 ECHR

The State had seized the secret documents that were in the possession of De Telegraaf pursuant to Section 96a of the Code of Criminal Procedure. The ECtHR reviewed whether this interference had a statutory basis, and found that in this case, it had. In this case, unlike in the situation with Autoweek/Sanoma, the documents were not simply seized. The documents were placed in a container by a notary and sealed, after which the container with the documents was handed over to the investigating judge to be kept in a safe unopened pending the outcome of objection proceedings before the Court in The Hague. This procedure made it possible – in summary – to have a judicial review performed prior to the infringement of the journalistic right of non-disclosure. Thus, the requirement of this interference having “a statutory basis” was fulfilled.

Next, the ECtHR considered whether the seizure was “necessary in a democratic society”, or corresponded to a “pressing social need”. The ECtHR forcefully reiterated the reasons why the journalistic right of non-disclosure is of enormous importance:

“Protection of journalistic 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. As a result the vital public-watchdog role of the press may be undermined and the ability of the press to provide accurate and reliable information may be adversely affected. Having regard to the importance of the protection of journalistic sources for press freedom in a democratic society and the potentially chilling effect an order of source disclosure has on the exercise of that freedom, such a measure cannot be compatible with Article 10 of the Convention unless it is justified by an overriding requirement in the public interest (…).”

So, it is only permitted to infringe the journalistic right of non-disclosure if this is justified by “an overriding requirement in the public interest”. In this case, the ECtHR concluded that there was no such factor of public interest.

The State had adduced various reasons why an ‘overriding requirement’ did exist. For example, the State argued that the intervention was necessary to discover the identity of the leak and to check whether all documents that had gone missing from the AIVD had meanwhile been withdrawn from public circulation. However, the ECtHR found that none of these reasons was “relevant and sufficient” to constitute an “overriding requirement in the public interest”. Also with reference to this action by the State, the ECtHR found that there had been a violation of Article 10 of the ECHR.

Ruling and Dissenting Opinion

The ECtHR ruled unanimously that Article 8 and Article 10 had been violated vis-à-vis the journalists, and ruled by five votes to two that Article 10 had been violated vis-à-vis De Telegraaf. The ECtHR ordered the State to pay the claimants €60,000.

Interestingly, the Dutch judge Egbert Myjer is one of the two ECtHR judges who think that Article 10 of the ECHR has not been violated vis-à-vis De Telegraaf. Together with the Spanish judge Luis López Guerra, he stated that the AIVD held title to the secret documents. The dissenting judges concluded that obtaining these documents unlawfully is theft, and consider it unacceptable that by using the journalistic right of non-disclosure, the possessor of the documents should be allowed to set conditions for their return to the person or institution that, according to the dissenting judges, has title to them. The two judges maintained that the State had the right to claim the surrender of the documents and was not violating Article 10 of the ECHR by seizing the documents that were in the possession of De Telegraaf.