The ruling by the European Court of Human Rights (ECHR) on 28th June in a case of protection of sources brought by journalists at L’Equipe et Le Point against France is yet another legal victory by the IFJ and its unions that confirmed our right to protect our sources. It reinforces the leading court decision on the issue, the seminal and hugely influential Goodwin v UK in 1996, followed by Sanoma Uitgevers BV v the Netherlands in 2009.
Looking at a fact sheet produced by the ECHR on the protection of journalistic sources, it beggars belief that such clear judgments still fail to deter police, security agencies and national tribunals from attempting to browbeating journalists into revealing the sources of their news stories.
“The European Court of Human Rights has repeatedly emphasised that Article 10 safeguards not only the substance and contents of information and ideas, but also the means of transmitting it. The press has been accorded the broadest scope of protection in the Court’s case law, including with regard to confidentiality of journalistic sources,” says the fact sheet.
It then quotes the landmark Goodman case, which enshrines the Article 10 entitlement of journalists to protect their sources. “The protection of journalistic sources is one of the basic conditions for press freedom,“ it says. “ An order of source disclosure ... cannot be compatible with Article 10 unless it is justified by an overriding requirement in the public interest.”
This latest case concerned investigations carried out at the premises of L’Equipe and Le Point newspapers and at the homes of five journalists accused of breaching the confidentiality of a judicial investigation. The authorities wanted to identify the source of the leaks in an investigation into possible doping in cycle racing launched in 2004 among members of the Cofidis cycle racing team. Searches were carried out at the newspaper offices and the journalists’ homes in January 2005, equipment was seized and lists of telephone calls were placed under seal. The journalists were released for lack of evidence. They took their case to the ECHR with the help of their union, the SNJ, acting jointly with the IFJ.
The ECHR, led by judge Spielmann from the Luxembourg, confirmed that “the protection of journalistic sources was one of the cornerstones of freedom of the press” and found that “there had been a violation of Article 10.” Their ruling said that “Without such protection, sources might be deterred from assisting the press in informing the public……Interference with the confidentiality of journalistic sources could only be justified by an overriding requirement in the public interest.”
It further pointed out that the right of journalists not to disclose their sources could not be considered a mere privilege to be granted or taken away depending on the lawfulness or unlawfulness of their sources, but was part and parcel of the right to information.
We were quire right to feel once vindicated and to celebrate. It is quite clear that the law is on our side, but will this prevent police and security agencies from continuing their wide-ranging fishing trips to intimidate journalists in handing over details of their sources or footage? It is easy to recall major cases that made headlines such as New York Times reporter Judith Miller who spent 85 days in jail in 2005 for refusing to testify against news sources in the investigation into leaks of a CIA operative's name by White House officials. Judith is the just the tip of the iceberg. The US-based Reporters Committee for Freedom of the Press has produced a database of dozens of other cases of journalists in the US jailed or fined for refusing to reveal their sources. One shudders to think of what happens to journalists in lesser democracies.
The time has come for the IFJ to build on this victory and to take the issue to the UN Human Rights Council. Several legal partners will be advising us in the next few months on how to raise it. But we will not be starting from scratch. In his report to the Human Rights Council’s 20th session last June on the promotion and protection of the right to freedom of opinion and expression, Special Rapporteur Frank La Rue has already made a specific recommendation which will go a long way to help us lobby for its implementation worldwide. He wrote: “Journalists working both offline and online should be free to use diverse sources of information, including from those who do not wish to be identified. Journalists should never be forced to reveal their sources except for certain exceptional cases where the interests of investigating a serious crime or protecting the life of other individuals prevail over the possible risk to the source.”