Dr. Lasse Schuldt, CPG, Faculty of Law, Thammasat University, Bangkok

 

Abstract

This article analyzes the jurisprudence of the European Court of Human Rights in cases of searches and seizures at journalists’ workplaces or homes, following the disclosure of confidential information. It assesses the Court’s arguments when balancing between press freedom as protected by Article 10 of the European Convention on Human Rights, and the interest of the state to protect state secrets. The initial thesis that any search which primarily aims at finding the leak within the state apparatus is unlawful needs to be qualified before the background of the variety of arguments employed by the Court. The article concludes with the formulation of rough guidelines as carved out by the Court’s jurisprudence.

 

Introduction

When journalists publish secret information, they regularly face legal consequences. The owner or possessor of the respective data, a private person or, more commonly, the state, might launch proceedings against individual journalists, editors or against the media company. Among the most common responses by state authorities are searches and seizures at the journalists’ workplaces or homes in order to investigate the breach of confidentiality.¹ These cases involve delicate legal questions as the journalists can invoke press freedom as guaranteed by national constitutional law, whereas the state claims the necessity to protect certain information against being communicated to the public.

Within Council of Europe (CoE) member states², national courts need to pay respect not only to domestic constitutional law but also to the obligations under the European Convention on Human Rights (the Convention) as well as to the jurisprudence of the European Court of Human Rights (ECtHR, the Court). The Convention forms the standard that all CoE member states are contractually bound to uphold. The Court exercises its jurisdiction in order to ensure the observance of the engagements undertaken by the states who are parties to the Convention and the protocols thereto (Art. 19 of the Convention). Any person, non-governmental organization or group of individuals claiming to be the victim of a violation by one of the contracting states can refer the matter to the Court after having exhausted all domestic remedies (Art. 34, Art. 35 (1)).

This article addresses the balance between the rights of the press (Article 10) and the interests of the state within the framework of the Convention. The analysis is based on ten decisions by the Court that dealt with searches and seizures in cases when secret information had been published by the press. These ten cases shall briefly be introduced before moving on to the legal analysis. It is to be noted that in none of the cases was any of the involved journalists found guilty of a crime. Furthermore, it shall already be mentioned that the Court found violations of Article 10 of the Convention in nine of the ten cases.³

 

A brief overview of the case material

In Vereniging Weekblad Bluf! vs. The Netherlands⁴, the editorial staff of the magazine “Bluf!” had come into possession of a quarterly report by the Dutch internal security service. Before being able to publish any of its content, an investigating judge ordered the applicant association’s premises to be searched and had the entire print run of the respective issue of “Bluf!” seized. The magazine was subsequently withdrawn from circulation by a court order. Criminal charges against the staff were dropped.

Searches and seizures were also conducted in the case of Roemen and Schmit v. Luxembourg⁵. Mr. Roemen had published an article in the “Lëtzebuerger Journal” making public that a member of the government had been convicted of tax fraud. Mr. Roemen based the article on official documents that he had access to. After the minister had brought criminal charges, Mr. Roemen’s home and workplace were searched. No evidence was found. Subsequently, his lawyer’s office was also searched where the police found a piece of evidence. After initially being charged with “handling information received in breach of professional confidence” by the investigating judge, the investigation was eventually closed.

Similarly, in Ernst and others v. Belgium⁶, the workplaces of four journalists at the newspapers “De Morgen”, “Le Soir” and “Le Soir Illustré” and at the “R.T.B.F.” TV station were searched. Documents, discs and hard drives were seized. The searches and seizures were part of criminal investigations into constant information leaks at the office of the public prosecution. No criminal charges were brought against the journalists themselves.

In Tillack v. Belgium⁷, the German magazine “Stern” had published two articles written by Mr. Tillack reporting on allegations by a European civil servant concerning irregularities in the European institutions. The Belgian judicial authorities subsequently opened a criminal investigation against Mr. Tillack suspecting him of having bribed a civil servant at the European Anti-Fraud Office (OLAF) in order to receive internal documents. His home and workplace were searched. Almost all of his working papers and tools were seized and placed under seal (sixteen crates of papers, two boxes of files, two computers, four mobile telephones and a metal cabinet). No inventory of the items seized was drawn up. No criminal charges were brought to court. The allegations against Mr. Tillack turned out to be false rumors.

In Sanoma Uitgevers B.V. v. The Netherlands⁸, the applicant company intended to publish an article about illegal car races in the upcoming edition of the magazine “Autoweek”. Before the date of publication, police officers and public prosecutors demanded photographic materials be handed over to them and threatened to search the whole of the company’s premises. The editor-in-chief refused and was detained for four hours on the premises. The company finally handed over the material which was seized by the police.

A number of documents were seized in a similar way in the case of Martin and others v. France⁹. Mr. Martin and other journalists had published a number of articles in the newspaper “Le Midi Libre” quoting from a provisional auditing report alleging that the region of Languedoc-Roussillon had been mismanaged under the presidency of a certain politician. Investigations on the account of a suspected violation of professional secrets led to the offices of “Le Midi Libre” being searched by the police. Documents and hard drive copies were seized. Eventually, no criminal charges against any of the journalists have been brought to court.

Another case that reached the Court from France involved allegations of systematic doping in the “Cofidis” Tour de France cycling team. Ressiot and others v. France¹⁰ concerned searches and seizures at the newspapers “L’Équipe” and “Le Point” which targeted particularly the workplaces of five journalists who had reported about investigations led by the anti-drug authority against members of the cycling team. The articles contained information from the investigation file including telephone tapping transcripts and lists of seized items. Besides the searches at the newspapers’ offices, the homes of two of the journalists were searched, too. Further, the police requested the mobile phone telecommunication data (incoming and outgoing calls) of three journalists from the respective telephone operating companies. The same was ordered for L’Équipe’s telefax line. Moreover, one journalist’s mobile phone was put under surveillance for the duration of one month. In the subsequent criminal trial, all five journalists were acquitted from all charges.

In Nagla v. Latvia¹¹, the producer and reporter of the weekly investigative news programme “De facto”, Ms. Nagla, had reported about probable security flaws in a database maintained by the Latvian state revenue service. She had obtained actual data samples from the database that were downloaded and sent to her by a person referring to himself as “Neo”. A few days later, the police asked her for access to the e-mail correspondence with “Neo”. Ms. Nagla declined to disclose the identity of her source or any information which could lead to its disclosure. Though a person suspected to be “Neo” had subsequently been arrested, the police conducted a search at Ms. Nagla’s home. The seized items included a personal laptop, an external hard drive, a memory card and four flash drives. Ms. Nagla was not charged with any crime.

The case of Stichting Ostade Blade v. The Netherlands¹² was a particular case for it was characterized by the search for a letter in which the organization “Earth Liberation Front” claimed the responsibility for a bomb attack in Arnhem. The letter had been sent to the magazine “Ravage”. As the actual letter could not be found, the police took four computers, application forms of new subscribers, address wrappers, a diary, a telephone index, a typewriter, data of contact persons and other editorial materials as well as private data of the editors from the magazine’s premises. Complaints by the publishers of “Ravage” to the courts were not successful.

The recently decided case of Görmüs and others v. Turkey¹³ dealt with the search at the premises of the weekly newspaper “Nokta”. The newspaper had published an article revealing that the General Staff of the Turkish armed forces had created lists of journalists and non-governmental organisations considered to be either pro or against the armed forces. The lists were the basis for inviting “friendly” journalists and NGOs to military events. The newspaper’s premises were subsequently searched. Though Mr. Görmüs, the newspaper’s director, had handed over the requested material at the beginning of the operation, the officials seized all digital data from 46 professional and private computers.

 

Article 10 and press freedom

The factual recounts demonstrate the deep impact of criminal investigations on journalists and media organizations that had published secret information. Though the searches undertaken by public authorities varied in scale, all actions limited the press in the free exercise of its profession. What is more, massive searches and seizures executed in order to discover journalists’ sources may have an additional chilling effect on the future practice of the press. Before this background, the article will now discuss the Court’s assessment of searches and seizures before the background of the state’s interest in secrecy and the public’s right to know. It briefly addresses the scope of protection under Article 10 and the requirements for restrictions as pronounced by the Court, before then concentrating on the Court’s interpretation of what is “necessary in a democratic society”.

Article 10 – Freedom of expression

1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.

2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.

 

Scope of protection under Article 10

In its jurisprudence, the Court emphasizes that the promotion of free political debate is a fundamental feature of a democratic society and attaches the “highest importance” to freedom of expression.¹⁴ Though freedom of the press is not expressly mentioned in Article 10, the Court has repeatedly highlighted the role of the press as “public watchdog”¹⁵ and accorded it a comprehensive protection. The Court considers it incumbent on the press to impart information and ideas on matters of public interest while also emphasizing a right of the public to receive them.¹⁶ Article 10 protects the whole creative and research process as well as the distribution of the information.¹⁷

Whereas the text of Article 10 (“everyone”) does not indicate a differentiated personal or material scope, the Court has accorded the press an institutional protection that cannot be claimed by an individual who does not work for the press. This protection relates to, for example, editorial confidentiality, protection of sources, or access to public events for the purposes of reporting. Notably, the Court considers the protection of journalistic sources one of the basic conditions for press freedom and “part and parcel of the right to information, to be treated with the utmost caution”¹⁸. Without such protection, the Court has held, sources may be deterred from assisting the press in informing the public on matters of public interest.¹⁹

This special protection of the press naturally provokes the difficulty to decide who is considered part of the press. According to the traditional notion, “press” refers to periodically published printed works.²⁰ However, over time press freedom’s specific guarantees have been applied to many kinds of media, including TV, radio and internet publications. The increasingly relevant question whether bloggers can invoke the special guarantees of press freedom (such as source protection), has not yet been explicitly addressed by the Court. The answer most likely depends upon criteria indicating whether the blogger operates the blog comparably to a press publication.²¹ From a functional perspective, the simple criterion should be whether a blog intends to impart information (facts or opinions) to the public. If that is the case, periodical blogs and one-time content uploads should in principle be treated alike as this would reflect the Court’s similar position towards printed works.²² Slightly different questions are posed by portals like “WikiLeaks” that offer access to edited or unedited copies of (confidential) documents. These portals usually do not explain, rate or comment on the individual content. Rather, they largely limit themselves to uploading. However, from the perspective of the public’s right to receive information under Article 10, portals such as “WikiLeaks” functionally deserve a protection similar to the press.²³ In particular, the protection of sources is vital for them.

According to Article 10 paragraph 2, the exercise of the freedoms stipulated in the first paragraph carries with it “duties and responsibilities”. Paragraph 2 enumerates possible grounds for restrictions that, in order to pass the Court’s muster, must be prescribed by law and necessary in a democratic society. With regard to press freedom, however, the Court has translated the “duties and responsibilities” clause into the protection of journalism that is exercised “in good faith and on an accurate factual basis”; journalists shall provide “reliable and precise information in accordance with the ethics of journalism.”²⁴ Moreover, in the recent Grand Chamber decision of Bédat v. Switzerland, the Court reaffirmed the previously²⁵ developed notion of “responsible journalism”. The contents of the collected or disseminated information as well as a journalist’s conduct must reflect this notion of responsibility. In that regard, “the fact that a journalist has breached the law is a relevant, albeit not decisive, consideration when determining whether he or she has acted responsibly.”²⁶

It is apparent that the Court does not strictly separate the scope of protection from the question whether a restriction is justified. Instead, the Court states that it is one of the “general principles” of freedom of expression under the Convention that “the protection afforded by Article 10 of the Convention to journalists is subject to the proviso that they act in good faith”²⁷. The Court thereby seems to mix the scope with possible reasons for a restriction. In that regard, it might be critically asked whether simple domestic laws can actually be enough to limit a freedom’s scope under the Convention. This article is, however, not the place for analyzing the Court’s methodological approach. Rather, it suffices to state that the notions of “good faith” and “responsible journalism” have to be taken into account when deciding whether a state has violated Article 10 or not.

 

Restrictions prescribed by law

The freedoms laid down in Article 10 paragraph 1 may be subject to certain “formalities, conditions, restrictions or penalties” (paragraph 2). Furthermore, every restriction must be “prescribed by law”. With regard to the cases analyzed for the purpose of this article, this requirement has rarely caused any trouble. As a general rule under Article 10, the Court merely demands that the restriction must have “some basis in domestic law”²⁸. The Court understands the term “law” in its substantive sense. It has included both written law, encompassing enactments of lower ranking statutes and regulatory measures taken by professional regulatory bodies under independent rule-making powers delegated to them by Parliament, and unwritten law including judge-made law.²⁹

The Court usually limits its scrutiny to verifying whether the law was accessible and foreseeable at the material time.³⁰ However, when it comes to measures restricting the protection of journalistic sources, the Court adopts a stricter approach demanding mechanisms for review by a judge or other independent and impartial decision-making body.³¹ According to the Court, it is in principle desirable to entrust supervisory control to a judge.³²

A relevant case in this regard is Sanoma, where a public prosecutor ordered the disclosure of journalistic sources. Though the advice of an investigating judge was sought, his involvement was merely conceded voluntarily by the public prosecutor and lacked a basis in law. Moreover, his advice was not binding. Therefore, the Court held that the prosecutor’s order was not prescribed by law in the sense of Article 10. Furthermore, it stated that any judicial review post factum could not cure these failings since the identity of the journalistic sources would have been disclosed already at that point.³³ The Court elaborated:

“The requisite review should be carried out by a body separate from the executive and other interested parties, invested with the power to determine whether a requirement in the public interest overriding the principle of protection of journalistic sources exists prior to the handing over of such material and to prevent unnecessary access to information capable of disclosing the sources’ identity if it does not. (…) Although the public prosecutor, like any public official, is bound by requirements of basic integrity, in terms of procedure he or she is a “party” defending interests potentially incompatible with journalistic source protection and can hardly be seen as objective and impartial so as to make the necessary assessment of the various competing interests.”³⁴

Regarding the public prosecutor’s power to order the execution of searches and seizures in cases of urgency, the Court demands an involvement of an independent judge before the seized items are examined. In the case of Nagla v. Latvia, the investigating authorities decided, almost three months after the broadcast in question and after the applicant had agreed to testify, that a search at Ms. Nagla’s home was necessary. They proceeded under the urgent procedure without the involvement of a judicial authority that could have examined the relationship of proportionality between the public interest of investigation and the protection of the journalist’s freedom of expression. The Court held that “it may be impracticable for the prosecuting authorities to state elaborate reasons for urgent searches; in such circumstances the necessary assessment of the conflicting interests could be carried out at a later stage, but in any event at the very least prior to the access and use of the obtained materials.”³⁵

Finally, another important conclusion that can be drawn from Sanoma relates to the question how severe an action of the state must be in order to be considered a restriction. In Sanoma, the editorial offices were actually not searched. However, the police detectives and public prosecutors threatened to seal and search the whole of the applicant company’s premises, if need be for an entire weekend and beyond, and remove all computers. In the given case, the threatened search would have entailed a financial damage for the applicant company as, during that weekend, articles were to be prepared for publication on the subject of the wedding of the Netherlands Crown Prince.³⁶ Being faced with these facts, the Court held that it must take the threat “as seriously as it would have taken the authorities’ actions had the threat been carried out. (…) While it is true that no search or seizure took place in the present case, the Court emphasises that a chilling effect will arise wherever journalists are seen to assist in the identification of anonymous sources.”³⁷ In the words of the Court:

“Not only the offices of Autoweek magazine’s editors but those of other magazines published by the applicant company would have been exposed to a search which would have caused their offices to be closed down for a significant time; this might well have resulted in the magazines concerned being published correspondingly late, by which time news of current events (…) would have been stale. News is a perishable commodity and to delay its publication, even for a short period, may well deprive it of all its value and interest (…). This danger, it should be observed, is not limited to publications or periodicals that deal with issues of current affairs.”

It follows that searches and seizures do not actually need to be carried out in order to qualify as a restrictive measure. A threat can be enough if a chilling effect on the press, that depends on the trust of its sources, cannot be ruled out. In the eyes of the Court, this is usually the case. Threats of searches and seizures are, therefore, interferences like searches and seizures that have actually been executed.

 

Case study: Searches and seizures under German criminal procedural law

The legal framework dealing with searches and seizures at journalists’ workplaces or homes can differ materially from country to country. Generally, all CoE member states recognize press freedom as a constitutional right. Its actual significance in the case of criminal investigations, however, also depends on the provisions of criminal procedural law and court jurisprudence. By way of example, the German provisions relating to searches and seizures and their application in cases when journalists are targeted shall be presented here.

According to Section 98 subsection (1), second sentence, of the German Code of Criminal Procedure (Strafprozessordnung, StPO, the Code), seizures in the premises of an editorial office, publishing house, printing works or broadcasting company may be ordered only by the court.³⁸ The same requirement applies to searches.³⁹ However, due to explicit privileges accorded to the press by the Code, an order of searches and seizures is usually unlawful: Seizures of documents, sound, image and data media, illustrations and other images in the custody of media professionals⁴⁰ or of the editorial office, the publishing house, the printing works or the broadcasting company, shall be inadmissible insofar as they are covered by the right of such persons to refuse to testify (Section 97 subsection (5), first sentence, StPO).

Therefore, as long as members of the press are considered to be witnesses in a particular investigation, there is no legal possibility for searches and seizures at press premises or at the homes of journalists. According to the Code’s mechanism, the limits of searches and seizures concerning journalists as witnesses is determined by the scope of their right to refuse testimony. This scope is wide and covers any information concerning the author or contributor of comments and documents, or concerning any other informant or the information communicated to them in their professional capacity including its content, as well as concerning the content of materials which they have produced themselves and matters which have received their professional attention (Section 53 subsection (1), second sentence, StPO).

However, this carefully designed protection of media professionals collapses as soon as they themselves are considered to be suspects. An act of accusation changes a concerned person’s status from witness to suspect. Criminal suspects cannot claim witness privileges, but rather have the right to remain silent.⁴¹ The restrictions described above do not apply anymore⁴², and the exclusive power of the judge to order searches and seizures is complemented by the prosecutor’s power in exigent circumstances. Furthermore, in case a witness (such as a media professional) is not accused, the restrictions on seizures also do not apply if, for example, certain facts substantiate the strong suspicion that the person entitled to refuse to testify participated in the criminal offence (Section 97 subsection (2), third sentence, StPO).⁴³ It can therefore be seen that any act of incrimination has a significant impact on the position of a journalist with regard to his protection against measures of investigation.

In the past, German public prosecutors frequently constructed a suspicion against journalists suspecting them of aiding and abetting to commit a breach of official secrets (Section 353b of the Criminal Code), based on the mere fact that confidential content appeared in a newspaper.⁴⁴ This suspicion opened the possibility to search editorial offices. Their actual goal in most of the cases was to find the leak within the ranks of the state authority. In none of the cases has a journalist been actually accused in court.⁴⁵

The above-mentioned practice of constructing a “fake” suspicion has been found unconstitutional by the Federal Constitutional Court in the famous “Spiegel”⁴⁶ and “Cicero”⁴⁷ judgments: “Searches and seizures as part of a criminal investigation against media professionals are unconstitutional if they exclusively or primarily serve the purpose of identifying the person of an informant.”⁴⁸ Furthermore, the Constitutional Court clarified that the mere publication of an official secret can in itself never justify suspecting the involved journalists of aiding and abetting to a breach of official secrets. Rather, the prosecution needs to establish specific facts that the public official who leaked the information intended the subsequent publication. Only in that case could a predicate offence (breach of official secrets) be assumed. Moreover, in the meantime the German legislator has excluded any criminal liability of media professionals in case they limit themselves to the publication of official secrets that they received from a source.⁴⁹

Overall, it can be seen that the German criminal procedural law in conjunction with the jurisprudence of the Federal Constitutional Court provides a high level of protection of the press against searches and seizures. As long as journalists are not themselves the suspects of a crime, it is virtually impossible for state authorities to access journalists’ materials or sources. Furthermore, a criminal suspicion against journalists needs to be based on something else than the mere publication of confidential information. If, however, journalists are actively involved in acquiring official secrets, for example by stealing documents or by bribing or instigating public officials to disclose confidential information, they cannot claim a privileged treatment anymore.

 

Necessary in a democratic society

The article now moves on to discuss the arguments of the Court regarding the question whether searches and seizures targeting the press could be justified before the Convention. The decision whether or not a particular measure that restricts the freedom guaranteed by Article 10 is “necessary in a democratic society” (Art. 10 para. 2) requires a comprehensive balancing of interests in the light of the case as a whole.⁵⁰ Clearly, journalists are not above the law.⁵¹ Even when they report on matters of serious public concern, the Convention does not grant a wholly unrestricted freedom of expression.⁵² Under the notion of “necessary in a democratic society”, the Court determines whether the respective restriction corresponded to a “pressing social need”, whether it was proportionate to the legitimate aim pursued and whether the reasons given by the national authorities to justify it are relevant and sufficient.⁵³ In its assessment, the Court takes into account the interests involved in the respective case, the control exercised by domestic jurisdictions, the applicants’ conduct and the proportionality of the impugned measures.⁵⁴ Regarding orders to disclose journalistic sources, the Court emphasizes the potentially chilling effect of such an order and demands proof of an “overriding requirement in the public interest”.⁵⁵ Moreover, particularly relevant in the present context, the Court has held that press freedom assumes even greater importance in circumstances in which state activities and decisions escape democratic or judicial scrutiny on account of their confidential or secret nature.⁵⁶

 

Margin of appreciation

However, when the Court assesses the legality of measures that aim at the protection of confidential information against disclosure, it proclaims to leave the domestic courts a certain margin of appreciation. In the words of the Court, “this power of appreciation is not, however, unlimited but goes hand in hand with European supervision by the Court, whose task it is to give a final ruling on whether a restriction is reconcilable with freedom of expression as protected by Article 10.”⁵⁷ The (in)famous margin of appreciation doctrine generally still lacks contours. It remains opaque under which exact circumstances the CoE member states are accorded which margin. Though this is not the place to critically assess the doctrine’s conceptual basis,⁵⁸ the application of the doctrine to cases involving the disclosure of secret information by the press is particularly obscure.

Regarding these cases, the Court justifies applying the doctrine by referring to the lack of a common ground among the contracting states. It has held that the rules aimed at preserving the confidential or secret nature of certain sensitive items of information and at prosecuting acts which run counter to that aim “vary considerably not just in terms of how secrecy is defined and how the sensitive areas to which the rules relate are managed, but also in terms of the practical arrangements and conditions for prosecuting persons who disclose information illegally”⁵⁹. The Court therefore accords the domestic courts a margin of appreciation in assessing the necessity and scope of an interference because of their “direct, continuous contact with the realities of the country”⁶⁰.

At the same time, however, the Court has repeatedly stated that in cases where freedom of the press is at stake, the authorities have only a limited margin of appreciation to decide whether a “pressing social need” exists.⁶¹ What is more, the Court emphasizes that “the most careful scrutiny on the part of the Court” is called for when the measures taken or sanctions imposed by the national authority are capable of discouraging the participation of the press in debates over matters of legitimate public concern.⁶²

The concrete repercussions of invoking the margin of appreciation doctrine remain therefore unclear: On the one hand, the fact that press freedom is concerned leads to a limited margin of appreciation. On the other hand, the fact that the press publishes confidential information grants the domestic courts a wider margin of appreciation. Consequently, in cases concerning disclosures of confidential information by the press, references by the Court to the margin of appreciation doctrine do not seem to be actually operationalized. In practice, it can be observed that the Court might name the doctrine among the principles that need to be applied to the facts of the case. When it comes to the actual weighing of interests, however, the Court exercises its jurisdiction apparently without constraints. Neither does the Court clearly state which exact questions it leaves to be answered by the domestic courts, nor does it limit itself to merely controlling whether there was an “obvious” violation. It therefore seems to amount to a mere payment of lip service when the Court, after thoroughly balancing an extensive number of interests and arguments, comes to the conclusion that “the domestic authorities did not overstep their margin of appreciation”⁶³. It might be concluded that references by the Court to the margin of appreciation doctrine should primarily accommodate the member states’ concern regarding the Court’s subsidiary role as laid down in Articles 1, 13 and 35.⁶⁴ Concrete repercussions that could influence the outcome of the case are at least not visible in the Court’s judgments.

 

Assessing the case material

When it comes to systematizing the Court’s jurisprudence on searches and seizures in cases of disclosures of secret information, it needs to be observed that the Court usually discusses a number of arguments without clearly categorizing them. Rather, the Court takes into account various factors that together form the basis of its decision. However, having in mind the German Constitutional Court’s jurisprudence presented earlier, it shall be examined whether the Court recognizes at least one “red line”: that searches and seizures, which exclusively or primarily serve the purpose of identifying a source, constitute, in every case, a violation of press freedom. Subsequently, various other arguments employed by the Court will be discussed.

 

Targeting sources: A “red line” never to be crossed?

In seven of the ten cases analyzed for this article, the Court found that the state authorities executed searches and seizures in order to establish the identity of the source. In Roemen and Schmit where Mr. Roemen had published an article making public that a member of the government had been convicted of tax fraud, the Court noted that “the searches in the instant case were not carried out in order to seek evidence of an offence committed by the first applicant other than in his capacity as a journalist. On the contrary, the aim was to identify those responsible for an alleged breach of professional confidence and any subsequent wrongdoing by the first applicant in the course of his duties.”⁶⁵ Similar accounts can be found in the cases of Ernst⁶⁶, Tillack⁶⁷, Martin⁶⁸, Ressiot (“single aim”)⁶⁹, Nagla⁷⁰, and Görmüs⁷¹. In all of these cases, the public authorities’ exclusive or primary goal was to unveil the identity of the informant. The Court compares these searches and seizures with court orders compelling disclosure, and holds:

“even if unproductive, a search conducted with a view to uncover a journalist’s source is a more drastic measure than an order to divulge the source’s identity. This is because investigators who raid a journalist’s workplace unannounced and armed with search warrants have very wide investigative powers, as, by definition, they have access to all the documentation held by the journalist.”⁷²

The Court further notes that “the extent to which the acts of compulsion resulted in the actual disclosure or prosecution of journalistic sources [is] irrelevant for the purposes of determining whether there has been an interference with the right of journalists to protect them.”⁷³ In other words, it does not matter whether the identity of an informant has actually been unveiled. In cases of searches and seizures that aim at disclosing a source, this aim is enough to characterize the operation as an interference⁷⁴, despite of a potentially contradictory opinion in Stichting.⁷⁵

However, it would be erroneous to conclude that a search for the source is in any case in violation of the Convention. Rather, the conclusion that the Court draws from it is that “the measures thus undoubtedly came within the sphere of the protection of journalistic sources.”⁷⁶ Consequently, the fact that state authorities aim at closing the internal leak by searching a newspaper’s office needs to be assessed in light of the strict standards that apply to the protection of journalistic sources. But it does not in itself constitute a violation. This becomes clear when the Court, in Tillack, held:

“It is clear that, at the time when the searches in question were carried out, their aim was to reveal the source of the information reported by the applicant in his articles. Since OLAF’s internal investigation did not produce the desired result, and the suspicions of bribery on the applicant’s part were based on mere rumours, (…) there was no overriding requirement in the public interest to justify such measures.”⁷⁷

Thus, it can be seen that an “overriding requirement” justifying the search for the source, is, at least in theory, still conceivable. Similar evidence can be taken from the Roemen case. There, the Court found that the Government had “entirely failed to show that the domestic authorities would not have been able to ascertain whether [there were crimes committed] without searching the applicant’s home and workplace.”⁷⁸ This means that the search of Mr. Roemen’s home and workplace was not the least severe measure. The public authorities should have launched a thorough internal investigation first. However, in case these alternative measures had all failed, searches and seizures at a journalist’s home and workplace were not a total taboo.

Likewise, in Ernst, the Court stated that the Belgian government had failed to show that, in absence of the impugned searches and seizures, it would not have been able to investigate the leaks emanating from the office of the Public Prosecutor.⁷⁹ Comparable reasoning can be found in Martin.⁸⁰ In Ressiot, the Court accepted that the French authorities had, in vain, lead prior investigations to establish the identities of potential informants among the judicial personnel. It then continued by holding that France had nevertheless violated Article 10 due to the excessive and intimidating scale (“impressive and spectacular”) of the operation.⁸¹ In Nagla, the Court supported its finding that the search of Ms. Nagla’s home was designed to disclose her sources by holding that the search warrant was drafted in very vague terms and that there was no proper judicial oversight.⁸² In Görmüs, the Court held that the search was not necessary because the material sought by the military prosecutor had already been handed over. Moreover, the search and seizure were excessive in character.⁸³

From this material, it can be seen that searches and seizures which exclusively or primarily target a journalist’s source do not constitute a “red line” in the jurisprudence of the Court. Rather, the Court appreciates this fact in the context of asking whether a particular operation was actually “necessary”: State authorities must choose the least severe means (e.g. internal investigations) and may only resort to searches and seizures at press premises if all other measures have been conducted to no avail. The initial thesis drawn from the example of the German Constitutional Court holding that such operations inherently violate press freedom needs, therefore, to be qualified: Targeting sources by searching journalists’ workplaces or homes may be one argument in finding a violation of Article 10, but it is not, in itself, the decisive one. Rather, the Court assesses whether such operation was actually necessary.

 

Excessive and intimidating searches and seizures

In six of the ten cases analyzed for this article, the Court found that the particular searches and seizures were not only unnecessary but even excessive and intimidating. Systematically, these cases can be treated under the question whether an interference constituted the least severe means. However, as will be shown, the Court found them to have a particularly deep impact on the protection of journalistic sources.

In Ernst, where the prosecution launched investigations into information leaks emanating from its own office, the Court noted that it was “struck by the massive character of the operation” that took place at eight locations simultaneously and that employed 160 police officers.⁸⁴ Numerous documents, discs and hard drives were seized from journalists. Similarly, in the case of Tillack, the Court took the amount of property seized by the authorities into consideration: “Sixteen crates of papers, two boxes of files, two computers, four mobile telephones and a metal cabinet. No inventory of the items seized was drawn up. The police even apparently lost a whole crate of papers, which were not found until more than seven months later.”⁸⁵ Thus, the measures were disproportionate.⁸⁶

Though in Sanoma the public authorities merely threatened to conduct a large-scale search, the Court made clear that, had it been executed, “not only the offices of “Autoweek” magazine’s editors but those of other magazines published by the applicant company would have been exposed to a search which would have caused their offices to be closed down for a significant time”⁸⁷. In Ressiot, the case that involved revelations about doping at the Tour de France, the Court also highlighted the operation’s scale (searches at editorial offices, seizures of computers and messaging lists, surveillance of mobile and fixed telephones). It concluded that “the searches at the journals’ offices, impressive and spectacular, must have surely left a deep impression on the professionals who worked there, and they must have perceived them as a potential threat to their freedom to exercise their profession.”⁸⁸

In the case of Nagla, the Court marked the searches and seizures conducted by the Latvian authorities as excessive, primarily as a result of a wide-reaching search warrant. The Court held that “the search warrant was drafted in such vague terms as to allow the seizure of “any information” pertaining to the crime under investigation allegedly committed by the journalist’s source, irrespective of whether or not his identity had already been known to the investigating authorities.”⁸⁹ Furthermore, the data storage devices that were seized by the authorities contained not only information capable of identifying her source of information, but also information capable of identifying her other sources of information.⁹⁰

Finally, the Court denounced a particularly excessive behavior of the Turkish authorities in the case of Görmüs. Here, the concerned journalists had already handed over the impugned material that they had received from a whistleblower. Nonetheless, the officers proceeded to copy the complete data of 46 computers – an operation that took about 65 hours. The Court held that such an intervention was “of a nature that discourages all possible sources from assisting the press in informing the public about questions regarding the armed forces, even if these questions are of public interest. (…) The indiscriminate extraction of all data located on the devices allowed the authorities to collect information that did not have any link to the investigated facts.”⁹¹

As can be seen from the preceding accounts, the Court relates the excessive and intimidating character of an operation to the protection of journalistic sources. According to the Court’s jurisprudence, unnecessary searches and seizures are disproportionate and thereby violate Article 10. However, excessive, intimidating, or “spectacular and impressive” operations may have an even deeper impact on press freedom because potential sources are likely to be scared off. The Court therefore considers excessive searches as particularly harmful not only for the concerned journalists in a given case, but rather holds that such measures have “a dissuasive effect on other journalists or other whistleblowers by discouraging them from reporting irregular or debatable actions by public authorities.”⁹²

 

Source or not?

The answer on the question whether a person furnishing confidential material to the press is considered a “source” has a substantial influence on the outcome of the “necessary in a democratic society” test. As has been shown in the preceding paragraphs, the Court considers the protection of journalistic sources one of the cornerstones of press freedom under Article 10 of the Convention. Principally, every informant of the press is considered a source. However, the case of Stichting provides an example of circumstances under which a person who has sent material to the press would not be considered a source. In Stichting, the Court eventually held that there was no violation of Article 10.⁹³

According to the facts of the case, the Dutch police forces searched the editorial office of the bi-weekly magazine “Ravage”. The day before, the magazine’s editors had issued a press release in which they announced the upcoming issue of the magazine, to be released the following day, which would include the letter of the “Earth Liberation Front” (ELF) claiming responsibility for a bomb attack. The search was carried out in the context of criminal investigations against the perpetrators of three bomb attacks that had occurred in Arnhem.

In response to the applicants’ claim that the case concerned the protection of journalistic sources and that the Court’s relevant case law should apply, the Court held that “it does not follow [from its case law] that every individual who is used by a journalist for information is a “source” in the sense of the case-law mentioned.”⁹⁴ The Court continued:

“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. The distinction lies in that the latter protection is twofold, relating not only to the journalist, but also and in particular to the “source” who volunteers to assist the press in informing the public about matters of public interest.”⁹⁵

Before this background, the Court held that the magazine’s informant was “not motivated by the desire to provide information which the public were entitled to know.” Rather, he “was claiming responsibility for crimes which he had himself 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. For this reason, the Court takes the view that he was not, in principle, entitled to the same protection as the “sources” in [other cases].”⁹⁶ The outcome of the case was thereby substantially predetermined because the Court accorded the magazine a significantly lower level of protection. One might even argue that the Court restricted its control to an unnecessarily narrow scope. This becomes clear when the Court brushed off claims that other investigatory leads were available. In this regard, the Court responded:

“Even assuming such to be the case, the Court cannot find that the original document, whether on its own or in conjunction with other evidence, was incapable of yielding useful information. Indeed, if that be so then it cannot be seen what prevented the editors of the magazine from handing it over of their own accord.”⁹⁷

In this passage, it appears that the Court had made up his mind already and that it was not willing to depart from that route. As the sender of the letter was not considered a source, the argument that the searches might possibly not have been the least severe means is declared irrelevant. In other words, just because the protection of journalistic sources was of reduced importance in the given case, the Court did not apply a full-scale proportionality test anymore. It did not determine whether the searches and seizures were actually necessary. This is questionable from a methodological point of view and should be criticized. In any event, the case of Stichting demonstrates how the outcome of a case may depend on the question whether a provider of material is considered a source or not. This needs to be born in mind when assessing claims under Article 10.

 

Reporting questions of public interest

When dealing with press reports disclosing secret information, the Court normally assesses whether the respective article has contributed to the discussion of a topic of public interest. If this is the case, an interference “cannot be compatible with Article 10 of the Convention unless it is justified by an overriding requirement in the public interest.”⁹⁸ Hence, the threshold for justification is lifted to a higher level: Searches and seizures must not only be the least severe means, rather, the underlying public interest in the protection of confidential information must also clearly outweigh the public’s right to know. In this regard, the Court apparently employs a balancing test in order to assess a given measure’s proportionality in the narrow sense. In this balancing exercise, the Court also takes into account whether the impugned information can (still) legitimately be considered confidential and whether the journalists acted in good faith.

In the case of Bluf!, the Court had little difficulty in weighing the concerned interests as it held that the impugned security service’s quarterly report was not confidential anymore. The document in question was six years old at the time of the seizure. Further, the Court noted, “it was of a fairly general nature, the head of the security service having himself admitted that in 1987 the various items of information, taken separately, were no longer State secrets (…). Moreover, the report was marked simply “Confidential”, which represents a low degree of secrecy.” Finally, the publishers reprinted a large number of copies and sold them in the crowded streets of Amsterdam. “That being so, the protection of the information as a State secret was no longer justified and the withdrawal of issue no. 267 of Bluf! no longer appeared necessary to achieve the legitimate aim pursued.”⁹⁹ Accordingly, the Court found the searches and seizures at the editorial offices in violation of Article 10.

In Roemen, the Court noted that Mr. Roemen had published an established fact concerning a fiscal fine that had been imposed on a minister by decision of the director of a public authority. There was, therefore, “no doubt that he was commenting on a subject of general interest.”¹⁰⁰ Similarly, in the case of Martin, the articles written by Mr. Martin and his colleagues quoted from a provisional auditing report alleging that the region of Languedoc-Roussillon had been mismanaged under the presidency of a certain politician. The Court held that information relating to the management of public funds by local elected officials and civil servants was “a topic of general interest for the local community; the applicants had the right to make this information known to the public.”¹⁰¹ Furthermore, the Court noted that the journalists had marked the auditing report as provisional and subject to possible changes. They had their therefore acted in good faith and in accordance with journalistic ethics.¹⁰²

Unsurprisingly, the Court also found that the topics on which Mr. Ressiot and his colleagues had reported on – doping in professional sports, in this case cycling, as well as issues of public health connected to this affair – were of a “very important” public interest. The articles, therefore, responded to an increasing public demand for information about the practices of doping in sports and issues of public health. The public had “a legitimate interest in being informed as well as in informing itself about the investigation [into doping allegations concerning the “Cofidis” cycling team].”¹⁰³ Though the articles contained information from the prosecutor’s investigation file including telephone tapping transcripts and lists of seized items, the public’s right to know, in conjunction with the excessive character of the searches and seizures, outweighed the grounds of secrecy attached to an ongoing criminal investigation.

In Nagla, Ms. Nagla had reported about probable security flaws in a database maintained by the Latvian state revenue service. The Court noted that the subject-matter on which she had reported “made a twofold contribution to a public debate. It was primarily aimed at keeping the public informed about the salaries paid in the public sector at a time of economic crisis, when a variety of austerity measures had been introduced. It is not insignificant that, around the same time, legislative amendments were being drafted to make information concerning salaries in public institutions available to the general public (…). In addition, the applicant’s broadcast also exposed security flaws in the database of the State Revenue Service, which had been discovered by her source.”¹⁰⁴ Before this background and under the impression of the disproportionate seizures, the state authority’s operation was not justified by an “overriding requirement”.

Finally, in the case of Görmüs, the Court had the opportunity to address the notion of “national security” invoked by Turkey. Mr. Görmüs and his colleagues had revealed that the General Staff of the Turkish armed forces had created lists of journalists and non-governmental organizations considered to be either pro or against the armed forces. The Court held that the disclosure of this information was not able to threaten national security, clarifying that this notion needs to be interpreted in a restrictive manner.¹⁰⁵ On the contrary, the articles contributed to a public debate about the role of the Turkish military in the country’s politics.¹⁰⁶ “Excluding questions relating to the armed forces completely from the public debate is not acceptable.”¹⁰⁷ Rather, having regard to the freedom of access to information in a democratic society, the Court held that the public interest in the disclosure of information evidencing debatable practices of the armed forces is of such an importance that a possible loss of the public’s confidence in the military, in the wake of the disclosure, must be accepted. The Court reiterated that “a free discussion of problems of public interest is essential in a democratic state; one should beware of discouraging the citizens of expressing themselves about these problems.”¹⁰⁸

The Court also held that the journalists had reported in an objective manner, without any intention to obtain personal gains, and that there was no evidence that they held any personal grudge against the military services concerned.¹⁰⁹ Thus, they had acted in good faith.

From these accounts, it can be deduced that reports on topics of public interest enjoy a high level of protection. Though the public’s right to know still needs to be balanced with possible grounds for secrecy, only overriding requirements on the side of the state or an individual may justify an interference with press freedom.¹¹⁰ An existing public interest therefore reinforces the arguments for holding particular searches and seizures in violation of the Convention.

 

Conclusion

The analysis of the Court’s jurisprudence relating to searches and seizures in cases where journalists had published confidential material enables the formulation of rough guidelines for the assessment of future cases. First of all, when it comes to searches and seizures that have an impact on the protection of journalistic sources, the Court demands mechanisms for review by a judge or other independent and impartial decision-making body. Second, searches that primarily or exclusively aim at disclosing the identity of the source are not by itself prohibited. However, this fact may serve as a strong argument that there was a violation of Article 10. Third, any intimidation of journalists by excessive interferences will very likely result in a violation. Fourth, if a provider of information is not considered a “source”, the level of protection as regards press freedom is significantly lowered. And fifth, reports on matters of public interests enjoy a high level of protection. A matter is of particular public interest if it reveals mismanagement or other debatable behavior on the part of the state.