B Explanatory memorandum by Mr Johansson,
1 Following the tabling of a motion for a recommendation
by my Finnish colleague, Mrs Tuulikki Ukkola, and others, the Committee
on Culture, Science and Education appointed me rapporteur on the
protection of journalists’ sources on 25 June 2009.
2 On 25 and 26 October 2009, the Sub-Committee on the Media
held a hearing on respect for media freedom and the protection of
journalists’ sources, which was hosted by the Chamber of Deputies
of Luxembourg. I am very grateful for the substantial contributions
by the European Federation of Journalists, the Association of European
Journalists, the European Newspaper Publishers Association, the
International Press Institute/South East Europe Media Organisation,
Reporters Without Borders and, last but not least, the organisation
Article 19, all of which participated in the hearing.
Mr Hans-Martin Tillack, Brussels correspondent of Stern
magazine who had been asked
by the Belgian authorities to reveal his sources and later took
the case before the European Court of Human RightsNote
also attended this hearing and handed an original copy of the European
Charter on Freedom of the Press to the chairperson of the sub-committee,
Mr Andrew McIntosh, and the Chairperson of the Committee of Ministers
and Minister for Foreign Affairs of Slovenia, Mr Samuel Žbogar.
This charter was drawn up by many journalists and editors in order
to remind states of their obligation to respect media freedom and
the confidentiality of journalists’ sources.
4 Following a first reading of a draft report by the Committee
on Culture, Science and Education on 24 June 2010, I contacted the
European Federation of Journalists (Brussels) and Article 19 (London)
asking for their views on this subject. I appreciate the supportive
comments received. On 21 September 2010, I participated in the seminar
on the protection of journalists’ sources organised by the European
Federation of Journalists in London.
2 Legal standards under the European Convention
on Human Rights
5 The Council of Europe has taken a leading role in
acknowledging that the right of journalists not to disclose their
sources of information is an essential element of freedom of expression
under Article 10 of the European Convention on Human Rights (“the
Convention”), because the ability of journalists to provide accurate
and reliable information on matters of public interest is compromised
and adversely affected when they are forced to reveal confidential
sources of information.
In its judgment in Goodwin v. the
, the European Court of Human Rights recognised
that Article 10 of the Convention includes the right of journalists
not to disclose their sources of information. The Court also stressed
that the “protection of journalistic sources is one of the basic
conditions for press freedom, as is reflected in the laws and the
professional codes of conduct in a number of Contracting States
The Court further stated that “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 for 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”.Note
Four years later, Committee of Ministers Recommendation No.
R (2000) 7 on the right of journalists not to disclose their sources
of information established a number of principles which flow from
this right under Article 10 of the Convention. In addition, both
Assembly Resolution 1438
on freedom of the press and the working conditions
of journalists in conflict zones and Resolution 1636 (2008)
for media in a democracy call on member states to respect the confidentiality
of journalists’ sources.
Most recently, in the case of Sanoma
Uitgevers BV v. the Netherlands,Note
the Grand Chamber of the European
Court of Human Rights held that the quality of the national law
in question was deficient in that there was no procedure with adequate
legal safeguards available to the media company to enable an independent assessment
as to whether the interest of the ongoing criminal investigation
overrode the public interest in the protection of journalistic sources.
The Court therefore emphasised that states must have proper legal safeguards
for the protection of journalist sources.
Article 8 of the Convention guarantees the right to the protection
of private life, home and correspondence. In its judgment in S. and Marper v. the United Kingdom
the Court ruled that it is essential in the
context of telephone tapping, secret surveillance and covert intelligence
gathering to have “clear, detailed rules governing the scope and
application of measures, as well as minimum safeguards concerning, inter alia
, duration, storage, usage,
access of third parties, procedures for preserving the integrity
and confidentiality of data and procedures for its destruction,
thus providing sufficient guarantees against the risk of abuse and arbitrariness”.
11 The European Union Directive 2006/24/EC on data retention
requires telecommunications companies to store data about all of
their customers’ communications. Journalists’ organisations fear
that this directive could violate the secrecy of their sources.
Therefore, on 22 June 2010, 106 NGO representatives signed a letter
to the European Commissioners Cecilia Malmström, Viviane Reding
and Neelie Kroes urging them “to propose the repeal of the European
Union requirements regarding data retention in favour of a system
of expedited preservation and targeted collection of traffic data
as agreed in the Council of Europe’s Convention on Cybercrime.”
On 2 March 2010, the Federal Constitutional Court of Germany ruled
that the German law transposing Directive 2006/24/EC would violate
the right to privacy and correspondence under the German Constitution.
In addition, the Romanian Constitutional Court ruled, on 8 October
2009, that the Romanian law transposing this European Union directive
emptied de facto the constitutional principle of the protection
of privacy and private data.
3 Examples of cases in Council of Europe member
states concerning the right of journalists’ not to disclose their
sources of information
The European Federation of Journalists reported last
year that nearly 100 countries worldwide had adopted specific legal
protection for journalists’ sources, either in laws or constitutions.Note
International published in 2007 its report “Silencing sources: an
international survey of protections and threats to journalists’ sources”,
which contains extensive research on national laws and practice.Note
their submission to the European Court of Human Rights in the case
of Sanoma Uitgevers B.V. v. the Netherlands,
19 and other leading media NGOs produced an overview of national
legislation recognising the right of journalists not to disclose
there have been attempts throughout Europe to undermine the principle
of the confidentiality of sources. Journalists have been arrested
and questioned, their offices and homes searched and equipment seized,
to obtain information on their sources. The following list is not exhaustive,
but shall serve as a list of typical examples where the secrecy
of journalists’ sources is at stake.
13 Belgium: On 19 March
2004, police searched the home and workplace of Hans-Martin Tillack,
a reporter from the German weekly magazine Stern,
and seized his working papers and tools after he wrote a story based on
internal documents from the European Union’s Anti-Fraud Agency (OLAF).
Tillack was accused of bribing a European Union official in return
for secret files. No evidence was found to justify the complaints.
On 27 November 2007, the European Court of Human Rights held that
there had been a violation of Article 10 of the European Convention
on Human Rights as a result of searches carried out at Tillack’s
home and office in Brussels.
14 The mobile phone of journalist Anne de Graaf from the newspaper De Morgen was monitored for two months
in 2004 to identify her sources after she wrote a story about a
report on police fears of a terrorist attack in Antwerp. The Court
of First Instance ruled in 2007 that the interception was illegal
because there had been insufficient grounds to conduct such surveillance
to identify her source. She was awarded €500 in damages.
15 Denmark: In 2002, the
police wiretapped Stig Mathiessen, a journalist working for the
after he wrote a story about a death list of names of Danish Jews
supposedly circulating among Islamic fundamentalists. The police
obtained a court order to tap his telephone and he was ordered to divulge
the name of his source for the rumour to the police. This he refused
to do, arguing that he would have contacted the police if he had
received concrete evidence that could have prevented a serious crime.
A high court in Denmark ruled in September 2002 that Mathiessen
was not under an obligation to disclose his source.
16 Two journalists, Michael Bjerre and Jesper Larsen, and the
editor, Niels Lunde, of Berlingske Tidende were
prosecuted under the Criminal Code in November 2006 after publishing
material leaked from the Defence Ministry exposing the government’s
lack of credible evidence for its decision to back the invasion
of Iraq. A Danish court found that the journalists had acted in
the public interest in publishing the information and acquitted
17 France: On 13 January
2005, police searched the offices of the weekly Le Point and the sports daily L’Equipe and seized computers after
stories were published about investigations into doping in cycle
racing. Police carried out the raids as part of an investigation
into a supposed violation of the confidentiality of an investigation.
18 In December 2007, a journalist with Le
Monde, Guillaume Dasquié, was detained for two days and intelligence
services searched his home and interrogated him after he had published,
on 17 April 2007, an article revealing classified reports showing
that French intelligence services knew of some Al Qaeda plans and claiming
that they had warned the American authorities about a plot to highjack
an aeroplane as early as January 2001. Dasquié was accused of compromising
national defence secrets. The authorities demanded that he disclose
the identity of his sources or face charges of violating state secret
law. He was released some days later. According to him, his freedom
was obtained in exchange for naming his source, who could have been
part of the French intelligence services.
19 In September 2010, Le Monde filed
a lawsuit against the French Government for allegedly having broken the
secrecy of their sources by secretly searching their files concerning
their recent reports about government wrongdoings in connection
with tax evasions by the French industrialist Liliane Bettencourt.
20 Germany: A parliamentary
report released in 2006 revealed that the Federal Intelligence Agency
(BND) had been illegally spying on journalists for over a decade,
including placing spies in newsrooms to identify sources and to
monitor newspapers’ work. In 2007, the Federal Intelligence Agency
was again accused of spying on journalists who had written stories
21 Hungary: Rita Csik,
a journalist at the Nepszava newspaper,
was charged on 6 November 2004 under the Hungarian Penal Code for
writing an article in 2004 citing a police memorandum which had
gathered criminal evidence about a member of parliament. She was
acquitted in November 2005 by the Budapest municipal court, which
said that the document was not legally classified.
22 Ireland: In February
2006, freelance reporter Mick McCaffrey was arrested under the Criminal
Justice Act in connection with an article about the police arresting
and imprisoning an innocent man on murder charges. In the article,
McCaffrey cited a confidential police report. The police demanded
that McCaffrey reveal his sources and seized his telephone records.
McCaffrey refused to reveal his source and was released the next
23 On 23 October 2007, Colm Keena from the Irish
Times, author of an article on corruption by the former Irish
Prime Minister, was ordered by the High Court to hand over his documentation;
but instead he destroyed it. In August 2010, the mobile phone and
SIM card of the Irish freelance journalist Eamonn MacDermott was seized
by the Irish police in order to gain access to his phone records.
24 Italy: On 4 February
2004, police searched the homes and offices of Massimo Martinelli,
a journalist with the daily Il Messaggero,
and of Fiorenza Sarzanini, a reporter from the Corriere della Sera. The two journalists were
accused of breaking legal confidentiality rules relating to an article
about an investigation into the death of a doctor suspected of having
ordered another person to commit a series of murders between 1968
25 On 11 August 2006, police searched the offices of the daily
newspapers La Repubblica and
the Piccolo and two journalists’
homes and seized files following stories about Italy’s role in the
2003 kidnapping of the Egyptian imam Osama Moustafa Hassan Nasr.
The offices and homes of journalists Cristina Zagaria and Claudio
Ernè were searched particularly thoroughly and police took away
papers, notes and copied material from their computers. Zagaria
and Ernè were accused of violating legal confidentiality rules and
handling secret documents in breach of the Criminal Code.
26 Latvia: The financial
police wiretapped the telephones of television reporter Ilze Jaunalksne
in December 2005 and then leaked the tapes to a newspaper close
to government parties, claiming that the tapes proved Jaunalksne
was actively plotting with opposition parties. Jaunalksne had written
a report about a vote-buying scandal that apparently involved the
leaders of several governing political parties. In February 2007,
the Latvian Court awarded Jaunalksne €42 000 in damages and ordered
the suspension of the judge who had authorised the taps.
27 Lithuania: Police raided
the offices of the Laisvas Laikrastis newspaper
in September 2006, detained the editor, seized 15 000 copies of
the newspaper and confiscated computers from the office and the
editor’s home. The newspaper had published a story about a political
corruption investigation and was therefore accused of disclosing
information classified as a state secret.
28 Netherlands: The government
monitored the telephones of Bart Mos and Joost de Haas, two journalists from
the daily De Telegraaf who
were then placed in custody on 27 November 2006 by a court in The
Hague. They had published classified information revealing that
a criminal had been obtaining confidential information from police
and intelligence agencies while in prison. The tap was approved
by the Supreme Court in September 2006. Mos and De Haas were called
to testify in the trial to reveal their sources. The judge ordered them
to be detained for forty-eight hours after they had refused to reveal
their sources, but they were released on 30 November. Subsequently,
the court ruled that the journalists had the right to be exempted
from the obligation of giving evidence, because state security had
not been at risk.
29 Russia: The offices
of the weekly newspaper Permsky Obozrevatel and
the homes of some of its journalists in the Perm region were searched
by police on 2 August 2006, after a court had accused the paper of
disclosing state secrets and thereby violating the state secrets
law. The police seized nearly all the office computers, CDs, other
equipment and the journalists’ notebooks.
30 Switzerland: Two SonntagsBlick reporters, ChristophGrenacher and SandroBrotz, as well as the editor, BeatJost, were prosecuted under the
military penal code for publishing a document on 8 January 2006
dealing with supposed places of detention and interrogation methods
used by the American Intelligence Service (CIA). The SonntagsBlick article confirmed
the existence of secret detention centres run by the American Government in
Europe. The document, a fax from the Egyptian Foreign Ministry,
had been intercepted by Swiss military intelligence and then leaked
to the three journalists. The journalists and the editor were accused
of violating defence secrecy. On 17 April 2007, the three journalists
were acquitted by a military court.
31 Turkey: The offices
of Ahmet Alper Görmüs, the editor of the weekly magazine Nokta, were raided, equipment searched
and journalists interrogated in 2007, after it had published stories
about the military blacklisting of journalists based on a leaked
report prepared by the Office of the Chief of General Staff. The owners
of the newspaper and the editor were prosecuted for libel, while
two others were charged with inciting disrespect against the military.
The magazine closed under military pressure.
32 United Kingdom: Police
arrested ITV News producer Neil Garrett in October 2005 and searched
his flat after he published internal police information on the mistaken
shooting of Jean Charles de Menezes in August that year. The story
revealed crucial facts of the case which proved that there had been
a catalogue of errors on the part of the police, which had led to
de Menezes’ death. He revealed that the police had misled the public about
de Menezes’ actions before he was shot. Garrett was cleared in May
2006 after several periods of detention.
33 In 2006, police in Suffolk seized the confidential mobile
phone records of Mark Bulstrode, a journalist from the East Anglian Daily Times, to discover
his sources. Bulstrode had approached the police to inquire about
the reopening of an old case. The police asked him not to publish
the story because it could jeopardise the investigation. Despite
his agreeing, the police subsequently obtained Bulstrode’s private
phone records to find out his sources.
34 Suzanne Breen, the Sunday Tribune’s
Northern Ireland editor, wrote a number of stories about the Real IRA,
including a report of the group’s claim to be responsible for the
killing of two British soldiers. The Police Service of Northern
Ireland arrived at Breen’s home on May 2009 and ordered her to hand
over all the material (phones, computers, disks, notes) relating
to two articles she had written on the subject. The High Court in Belfast
ruled in June 2009 that a court decision forcing her to hand over
her notes compromised the concept of confidentiality of journalists’
sources recognised under the Terrorism Act of 2000 and Article 10
of the European Convention on Human Rights, and that it would have
threatened her life and the lives of her family to disclose her
4 Analysis of the situation
In order to evaluate whether the right of journalists
not to disclose their sources is adequately respected in Europe,
it is necessary to identify existing and possibly new challenges
to this right. The following questions shall guide this analysis.
far should the right of journalists to keep their sources secret
be recognised in law in Council of Europe member states? How can
the Assembly encourage member states to adopt explicit and comprehensive
laws on the protection of journalists’ sources and ensure that these
laws are implemented?
36 Almost all European countries recognise in law the importance
of protecting the confidential sources of journalists. However,
many European countries show significant weaknesses in implementing
such laws, as well as the standards set by the Council of Europe.
Several of the national laws are limited in scope, namely as regards
journalists or certain types of media.
Consequently, it appears necessary to draft more precise legislation
to facilitate the implementation of these laws and standards in
practical terms. In addition, training and assistance measures may
be helpful for police, prosecutors and judges.
is a journalist? Should the protection of journalists’ sources be
extended to anyone who collects and disseminates news, regardless
of whether or not this person is regularly or professionally engaged in
the collection and dissemination of information?
38 It was once easy to answer the first question, but today the
profession of journalist is undergoing major changes. The Internet
has challenged the definition of who is a journalist and thus the
people who should be protected. In the Internet age, almost anyone
can post information on the Internet, set up a blog, send mass e-mails
and present themselves as someone who collects and disseminates
information to the public.
The Council of Europe guidelines recommend that the law should
protect “any natural or legal person who is regularly or professionally
engaged in the collection and dissemination of information to the
public via any means of mass communication”.Note
With regard to
the increasing importance of the Internet as a means of mass communication,
there should be a debate on whether the protection of journalists’
sources should be enlarged to other persons engaged in the dissemination
of information. Bloggers, podcasters or citizen journalists who
publish news on the Internet are generally not doing so on a regular
or professional basis and are therefore not protected by the right
of journalists not to disclose their sources. Nevertheless, their
action may serve the right of the public to receive information
of public concern.
However, the right of journalists not to disclose their source
of information is a professional privilege, based on the fact that
a source might not provide important information to journalists
if the latter were not respecting the confidentiality of that source.
The same trust relationship does not exist with regard to non-journalists
and should not, therefore, be subject to a requirement of confidentiality.
all persons who by their professional relations with journalists
acquire knowledge of information identifying a source be granted
the same right to protection of their sources?
41 Editors, distributors and printers involved in collecting,
processing and disseminating news, as well as third parties such
as service companies which provide Internet access, security and
equipment, have access to information coming from a source. In the
course of their business with journalists, they may collect details about
persons with whom the journalists are communicating or knowledge
of their whereabouts at a particular time.
Only a few European countries specifically recognise the need
to protect people who have professional relations with journalists.
Clear legislation would facilitate the work of law enforcement authorities
and better protect the confidentiality of sources.
order to protect journalists’ sources, should legislation prohibit
authorities and companies from identifying “whistle-blowers”?
43 Whistle-blowers very often denounce wrongdoings, corruption
and mismanagement in the public and private sectors. For journalists,
they represent an important source of information. Most member states
of the Council of Europe have no comprehensive laws for the protection
of whistle-blowers, and often agencies track them down through investigations.
Potential whistle-blowers are therefore discouraged by the fear
The Assembly recently adopted Resolution 1729 (2010)
and Recommendation 1916 (2010)
the protection of “whistle-blowers”, which contain a number of important
guidelines for member states in this respect. In the case of Guja v. Moldova,Note
Chamber of the European Court of Human Rights confirmed that Article
10 of the Convention protected whistle-blowing or the disclosure
of secret internal information by an employee in the public interest.
Sweden has for many decades had a very positive experience
with the legal protection of sources of information. Under Swedish
law, sources who communicate to the public information held by public
authorities, via the media or by other means, must not be disclosed.
This is a fundamental legal principle in Sweden which is regarded
by the legislator as a “safety valve which in many cases makes it
possible for words to be pronounced that should be pronounced and
for facts to be brought out in the open that should be brought out in
- Should the law restrict the use of electronic
surveillance and anti-terrorism laws in order not to identify journalists’
sources of information?
46 Laws and technologies relating to the interception of communications
and surveillance have undergone major changes in recent years. Countries
have increasingly adopted laws which give them broad powers to conduct
surveillance. Modern technologies have been used by authorities
to circumvent the protection of sources and to track the movements
of journalists. As part of the security response to terrorism, European countries
have undermined the protection of sources by giving broad powers
to search and seize information and to conduct electronic surveillance
of journalists and media.
47 The confidentiality of journalists’ sources must not be compromised
by the increasing technological possibilities for public authorities
to control the use of mobile telecommunication and Internet media
by journalists. Internet service providers and telecommunication
companies should not be obliged to disclose information that may
lead to the identification of journalists’ sources in violation
of Article 10 of the European Convention on Human Rights.
48 On 26 September 2007, the Committee of Ministers adopted “Guidelines
on protecting freedom of expression and information in times of
crisis”, which may serve as a reference with regard to anti-terrorism measures.
The declaration by the Committee of Ministers on the protection
and promotion of investigative journalism, adopted on the same day,
likewise stresses the importance of respecting the confidentiality
of journalists’ sources.
49 Member states and the Council of Europe must do more
in order to ensure that the standards set by the European Convention
on Human Rights are fully respected. This is particularly important
with respect to freedom of expression and information of the media,
because this right is a necessary requirement for any democracy.
The right of journalists not to disclose their sources is still
violated quite frequently in Europe. This calls for specific legislative
action and training of law enforcement authorities.
50 In addition, the fundamental changes in communication technologies
and services over the last decade have changed the profiles of journalism
and the media. This development has generated new uncertainties
with regard to the confidentiality of journalists’ sources. Modern
legislation must specifically take account of this.
Finally, the protection of the confidentiality of journalists’
sources should ideally be reinforced. This could be done by recognising
the right of sources not to be revealed, for instance in legislation
on whistle-blowing in accordance with Assembly Resolution 1729 (2010)