Law still patchy on protection of anonymous sources


EUROPEAN DIARY:The European Court of Human Rights is one of the last lines of defence for the protection of journalistic sources

THE RAIDERS rammed into a wall, removed a cash dispenser with a shovel loader, threatened a bystander with a firearm and made off by lorry. That night police arrested a journalist – not for the heist but for refusing to surrender photographs that might have identified the gang.

This was in February 2002. The journalist, Tonie Broekhuijsen, is editor-in-chief of Dutch magazine Autoweek, based in Hoofddorp and read by motoring enthusiasts.

For four hours he refused to hand over the photographs on grounds they would identify confidential sources. After midnight, however, following a judge’s intervention, the magazine’s lawyers capitulated. Under protest, they gave police a CD-Rom.

The pictures were taken during the previous month at an illegal road race near the town of Hoorn. The organisers gave Autoweek journalists the opportunity to photograph the event on condition they guaranteed not to disclose the identities of any participants. The pictures were to be touched up to prevent identification.

Police broke up the race. They later suspected two of the racers were involved in the raid but said they could not identify them without the magazine’s photos.

These events lay behind a ruling this month of the European Court of Human Rights, which found there had been a violation of the principle of the protection of journalistic sources.

The judges held that the intervention of the Dutch judicial authorities breached the right to freedom of expression as the interference the magazine complained of was not “prescribed by law”.

The Dutch government was ordered to pay Autoweek’s publisher €35,000 for costs and expenses.

The ruling, hailed as a victory for press freedom, builds on other judgments by the Strasbourg- based court, which is one of the last lines of defence when the protection of journalistic sources comes under threat.

The principle of never revealing confidential sources is sacrosanct in the world of journalism; without it reporters and editors could not act as watchdog in the public interest.

Others see things differently, though. There are many examples of journalists coming under judicial pressure to tell all. Some reporters have been sent to prison for refusing to do so.

Over the years, however, the European court has strengthened the right of journalists to maintain the confidentiality of their engagement with sources.

In so doing, the judges have often referred to the “chilling effect” of journalists being seen to assist in the identification of anonymous sources.

The first of these rulings was in 1996, when the court held that a disclosure order requiring British journalist Bill Goodwin to reveal the identity of a person who provided him with information on an unattributable basis was an interference with his right to freedom of expression.

In rulings on Belgian and Luxemburgish cases, the court found that searches of journalists’ homes and workplaces seeking to identify civil servants who had provided them with confidential information interfered with their rights.

In a Dutch case, it found a journalist’s rights were infringed when he refused to name the person who had presented him with information on alleged wrongdoing by police officers in a criminal investigation. A domestic court had ordered his detention in an attempt to compel him to speak.

Last December, the court upheld the right of five British news groups to protect an anonymous source by not handing over a leaked document to a Belgian brewing company.

Notwithstanding the force of such rulings, the law on anonymous sources in European countries is patchy with differing degrees of protection and sometimes none at all.

In Sweden, for example, anyone who is a source has a fundamental right to anonymity and it is a criminal offence for journalists to break this duty of confidentiality.

In Spain, by contrast, there is no legislation on the protection of sources, even though the constitution allows the law to “regulate the right to the protection of the clause on conscience and professional secrecy”.

Then there is the question of how the law operates in practice.

In January the French parliament voted to outlaw “any direct or indirect breach of the protection of sources” unless a public interest “imperative” justifies it “and if the considered measures are strictly necessary and proportionate to the legitimate pursued goal”.

According to the French daily Le Monde, none of that was sufficient to stop the Élysée Palace from ordering the intelligence service to carry out an inquiry into the paper’s coverage of a party funding scandal that has riled the Sarkozy administration.

The Élysée said it “totally denies” the accusations made by Le Monde, which had cited police and intelligence sources. Even so, critics said the allegations made a mockery of Sarkozy’s own defence of the principle of confidentiality in 2008.