The Grand Chamber of the European Court of Human Rights gave judgment on 14 September 2010 in the case of Sanoma Uitgevers BV v Netherlands in relation to the disclosure of confidential journalistic sources. It held, unanimously that the requirement that the applicant provide material to the public prosecutor was not “prescribed by law” and was, therefore, a violation of Article 10 of the European Convention on Human Rights.
On 12 January 2002 an illegal car race was held on the outskirts of the town of Hoorn. The applicant contended that journalists working for its magazine Autoweek – who were doing a feature article on illegal car racing – were given permission to cover the event, provided that they did not identify those involved. The photographs were to be retouched to prevent the identification of the cars or participants. In the event, the race was stopped by the police, who were also present. No arrests were made.
The police later suspected that one of the cars used in the race had also been used as the getaway car in a ram raid on 1 February 2001, during which a cash point machine was stolen and a bystander threatened with a firearm. Later that day the police ordered the applicant to surrender a CD-ROM containing the photographs. The applicant refused on the basis they were protecting the confidentiality of their journalistic sources. The Amsterdam public prosecutor then issued the company with a summons to surrender the photographs and any related material concerning the race. The magazine’s editor-in-chief refused, again invoking the journalists’ undertaking not to identify the participants and was arrested and detained for 3 hoours.
The investigating judge of Amsterdam Regional Court, who, although recognising from the outset that he had no legal competence in the matter, was asked take on an “advisory role”. He took the view that the needs of the criminal investigation outweighed the applicant company’s journalistic privilege. On 2 February 2002 at 1.20 a.m., the applicant company, under protest, surrendered the CD-ROM. On 15 April 2002 the company lodged a complaint before the Regional Court, seeking the lifting of the seizure and restitution of the CD ROM, an order to the police and prosecution to destroy copies of the data recorded on the CD-ROM and an injunction preventing the police and prosecution from using information obtained through the CD-ROM. On 19 September 2002 the court granted only the request to lift the seizure and to return the CD-ROM.
An application was lodged with the European Court of Human Rights on 1 December 2003. Relying on Article 10 the applicant complained that they had been compelled to disclose information to the police that would have revealed their journalists’ sources. In its Chamber judgment dated 31 March 2009, the Court found that, although in principle a compulsory handover of journalistic material might have a chilling effect on the exercise of journalistic freedom of expression, a balancing exercise had to be carried out, In particular, the information contained on the CD-ROM had been relevant and capable of identifying the perpetrators of other crimes investigated by the police and the authorities had only used that information for those purposes. The Chamber therefore held, by four votes to three, that there had been no violation of Article 10.
On 14 September 2009 the case was referred to the Grand Chamber at the applicant’s request. The hearing took place on 6 January 2010. There was a Media Intervention in support of the applicant which developed detailed arguments in support of the general proposition that there should be strong substantive and procedural protections for journalistic sources.
The Grand Chamber noted that
“Given the vital importance to press freedom of the protection of journalistic sources and of information that could lead to their identification any interference with the right to protection of such sources must be attended with legal procedural safeguards commensurate with the importance of the principle at stake. … orders to disclose sources potentially have a detrimental impact, not only on the source, whose identity may be revealed, but also on the newspaper or other publication against which the order is directed, whose reputation may be negatively affected in the eyes of future potential sources by the disclosure, and on members of the public, who have an interest in receiving information imparted through anonymous sources” [88-89]
It then went on to consider the nature of the “safeguards” required – first and foremost being “the guarantee of review by a judge or other independent and impartial decision making body”  It did not consider the involvement of the investigating judge provided an adequate safeguard – as theere was no legal basis for this and he had, in any event, only an “advisory role”. The Court concluded:
“the quality of the law was deficient in that there was no procedure attended by adequate legal safeguards for the applicant company in order to enable an independent assessment as to whether the interest of the criminal investigation overrode the public interest in the protection of journalistic sources” .
The Grand Chamber re-emphasised the need for procedural safeguards before a “source disclosure order” is made. The obviously unsatisfactory procedure used by the Dutch public prosecutor was rightly condemned. In vieew of its conclusion on this issue the Grand Chamber did not consider the more difficult issues of “proportionality” under Article 10(2) and, in particular, the question as to how far the protection of journalistic sources should give way to the requirements of a criminal investigation.