Case Law, Strasbourg: Stichting Ostade Blade v Netherlands, The limits of the concept of “journalistic source” – Hugh Tomlinson QC

22 06 2014

516_thumbIn the case of Stichting Ostade Blade v Netherlands (App 8406/06, 27 May 2014) the Third Section of the Court of Human Rights held that an Article 10 application by a Dutch magazine arising out of a police raid was inadmissible.  

The purpose of the raid had been to obtain a letter claiming responsibility for a bomb attack and the Court accepted that the author was not a “journalistic source”.  There was a public interest in the disclosure of the letter to the police.

Background

The applicant published a magazine called “Ravage”.  A number of bomb attacks took place in Arnhem. On 2 May 1996, the applicant put out a press release stating that its next issue would include a letter from the Earth Liberation Front (“ELF”) which claimed responsibility for a bomb attack on 16 April 1996.

On 3 May 1996 the Arnhem Regional Court issued a search warrant and the police searched the applicant’s premises, under the supervision of an investigating judge.  The police took four computers which included the magazine’s subscriber database, a typerwriter and various other items.

On 15 November 1996 the applicant and its editor brought proceedings before the Regional Court claiming pecuniary and non-pecuniary loss suffered as a result of the violation of their right to freedom of expression and right to respect for privacy. The claim was dismissed.  The Regional Court held that there had been an overriding requirement in the public interest to search for the letter and for other indications on the magazine’s premises regarding links between the magazine and the perpetrators of the bomb attacks.  There was no unjustified interference with the rights of the applicant and the editor.

After a number of domestic appeals, the Amsterdam Court of Appeal found that although the search for the letter was justified, the search for possible links between the applicant and the ELF had not been justified and there were violations of Articles 8 and 10 in relation to this part of the search.

The application was lodged in Strasbourg on 1 March 2006.  The applicant complained that the search for the letter on its premises had violated its right to receive and impart information.

Judgment

The Court found that the order to hand over the letter, followed by a search of the premises when this was not obeyed, constituted an interference with the applicant’s right to “receive and impart information” ([58]).

The Court noted that the applicant’s argument was based on the premise that the case concerned the protection of journalistic sources [60].  It reiterated the importance of the press as “public watchdog” and the importance of ensuring that individuals remain free to disclose to the press information which should properly be accessible to the public [61].

However, the Court  went on to point out that not “every individual who is used by a journalist for information is a ‘source‘” in the sense discussed in the cases [62]. Nevertheless, the Court pointed out that

“It is undeniable that, even though the protection of a journalistic “source” properly so-called is not in issue, an order directed to a journalist to hand over original materials may have a chilling effect on the exercise of journalistic freedom of expression. That said, the degree of protection under Article 10 of the Convention to be applied in a situation like the present one does not necessarily reach the same level as that afforded to journalists when it comes to their right to keep their “sources” confidential”. [64]

 In this case, the magazine’s informant was not motivated by the desire to provide information which the public were entitled to know: rather his purpose was to claim responsibility for crimes he himself had committed:

“his purpose in seeking publicity through the magazine Ravage was to don the veil of anonymity with a view to evading his own criminal accountability” [65]

As a result, the informant was not, in principle, entitled to the same protection as classical “journalistic sources”. The interference was in accordance with law and pursued a legitimate aim.  On the question of “necessity in a democratic society”, the Court noted that the letter was sought as a possible lead towards identifying those suspected of having carried out bomb attacks.

The Court therefore found that the application was manifestly ill-founded and therefore inadmissible.  It also found, by a majority, that a complaint under Article 13 was inadmissible.

Comment

This decision is entirely unsurprising on the facts.  The police were investigating serious crimes, obtained a warrant and carried out a search under judicial supervision.  The decision of the domestic court that there was an “overwhelming requirement in the public interest” to search for the letter is difficult to fault.

The case shows the limits of the very broad Convention concept of “journalistic source”. In the case of (see Nagla v Latvia Judgment of 16 July 2013) the Court cited the Commitee of Ministers Recommendation No R (2000) 7 in holding that the term source covers any person who provides information to a journalist” and “information identifying a source” includes both “the factual circumstances of acquiring information from a source by a journalist” and “the unpublished content of the information provided by a source to a journalist” [81].

However, in the present case the Court emphasised that not all individuals who provided information to journalists were “sources” [62] .  The author of the letter sought by the police was not a “source” because his aim was to “don the veil of anonymity” with a view to evading his own criminal responsibility [65]. Although the Court recognised that an order directed to a journalist to hand over original material may have a chilling effect on freedom of expression [64] there was a different degree of protection where no “source” of was involved.  The protection extended only to the journalist and not to the supplier of information.

This approach seems questionable and difficult to apply in practice as it involves assessing the subjective motivation of the supplier of the information. In many cases, conventional journalistic sources may not be motivated by a desire to inform the public but may have a variety of questionable reasons for making the disclosure. This should not, of itself, lead to the removal of “source protection”.

It would, perhaps, be more straightforward to divide the cases into two categories:

  • Those where individuals provided public interest information to journalists in confidence and sought anonymity when doing so.
  • Those where public interest information was provided to journalists by other individuals or was obtained by journalists themselves using undercover methods.

Cases in the former category would have “strong” Article 10 protection.  This would be provided to both journalist and source. In the words of the Principle 3 of the 2000 Recommendation, source disclosure should only be ordered in such cases where

“there exists an overriding requirement in the public interest and if circumstances are of a sufficiently vital and serious nature“.

Cases in the latter category would be subject to less rigorous requirements.  Disclosure could be justified on conventional Article 10(2) grounds – that is, if in accordance with law, for a legitimate aim and where it was “proportionate” to that aim (that is, “necessary in a democratic society”).  When considering proportionality, the availability of alternative sources of the same information and the “chilling effect” of the disclosure would, of course, remain relevant considerations.

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2 responses

23 06 2014
"Robin Lupinhyo"

What strikes me is the proportionality of the police response. Seizing computer equipment and a typewriter may have prevented the magazine from publishing an issue, whether or not that was the intention of the Dutch police. Notwithstanding the naivety of the editor in saying the magazine planned to publish something in the future, I would also be interested to know whether the contents of the letter were published or if the police seizure prevented that.

24 07 2014
Case Law, Strasbourg: Stichting Ostade Blade v ...

[…] In the case of Stichting Ostade Blade v Netherlands (App 8406/06, 27 May 2014) the Third Section of the Court of Human Rights held that an Article 10 application by a Dutch magazine arising out of a police raid was inadmissible.  […]

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