Case Law, Strasbourg: Saint Paul Luxembourg SA v Luxembourg, Newspaper protected under Articles 8 and 10 – Hugh Tomlinson QC

17 05 2013

cabecalho_abertoIn the case of Saint Paul Luxembourg SA v Luxembourg (Case No 26419/10) decided on 18 April 2013, the Fifth Section of the Court of Human Rights considered the protection of journalists against coercive court orders.  It held that a warrant to search a newspaper office was, in the circumstances,  a violation of Article 8 and, because it was in wide terms which potentially included information about sources, it was also a violation of Article 10.  The Judgment is only available in French.

Background

In December 2008, “Contacto Semanário”,  a Portuguese language newspaper published by the applicant, included an article about families losing custody of their children signed by “Domingos Martins.”  This name did not appear on the list of Luxembourg press council journalists, although there was a journalist  named “Alberto De Araujo Domingos Martins”

A defamation complaint was made and a criminal investigation was opened.  In March 2009 a search warrant was issued to obtain documents in relation to these offences, including in relation to the identification of the author of the article.  The warrant was executed and the journalist gave the relevant documents to the police.  The journalist and the applicant’s staff cooperate with the police during the search.  However, the applicant subsequently made an unsuccessful application to the domestic court for an order cancelling the search warrant.

The applicant contended that the search of the premises of the newspaper was a violation of Article 8 of the Convention.

Judgment

The Court rejected the notion that Article 8 only protected the “homes” of individuals.  It held that the term “home”

“should be interpreted as also including the official office of a company run by an individual, and the official office of a legal person, including subsidiaries and other business premises” [37].

The fact that cooperated with the police did not deprive the search and seizure that accompanied its intrusive nature.   If there had been no cooperation the police would have executed the warrant  in any event [38] .   As a result, it was clear that the search was an interference with the applicant’s Article 8 rights.

The exceptions in Article 8 had to be interpreted narrowly, and [that] their necessity in a given case must be established so convincing “[43].  Although the purpose of the search was supposed to be to identify the author of the article, the connection was obvious from the published list of journalists.

“On the basis of these elements, the investigating judge could have – as a first option – taken a less restrictive measure to confirm the identity of the author of the article, rather than issuing a search and seizure order. The search and seizure were, therefore, not necessary at this stage” [44].

As a result, the search and seizure was not proportionate and was not justified under Article 8(2).

In relation to Article 10, the broad wording of the order did not exclude the possibility that it would be used to obtain information about the journalist’s sources.  Although the Government said that the sources were not being information about them could have been obtained under the warrant.  As a result, the search was disproportionate and there was a breach of Article 10 as well.

Comment

The result of the case is not surprising.  The Court has repeatedly emphasised the importance of protecting journalistic sources (see the Court’s “Fact Sheet” [pdf]).  Even where the primary purpose of the search was not to identify sources, there will still be a breach of Article 10 if, in the absence of an overriding public interest in source disclosure, the police have power to access information that the journalist did not intend to publish and could learn the identity of other sources [54].

The question of whether a newspaper’s offices can properly be described as its “home” within the meaning of Article 8 is controversial. Judge Jäderblom dissented on the point, relying on the distinction between the individual journalist and the applicant company.  It is, however, now clearly established that companies do, indeed, have Article 8 rights.  The majority followed the cases of Société Colas Est and Others v. France, (Case no 37971/97  [41]), and Wieser and Bicos Beteiligungen GmbH v. Austria, 74336 /01, [43]) on this point.

Finally, as Stijn Smet points out in a post on the Strasbourg Observers blog there is another interesting and unusual feature of the case. In making its “proportionality” decision under Article 8 the Court the court relied on “less restrictive means” test.  He comments

It is particularly rare for the Court to apply the necessity test as separate from the proportionality stricto sensu test (also known as balancing). Instead, the Court has generally looked at the existence of less intrusive measures as an element to consider in the balance or it has continued to examine a measure’s proportionality in the strict sense after having indicated that less restrictive measures were available.

It remains to be seen, however, whether this represents a new and more rigorous proportionality analysis by the Court.  Smet notes that the Court did not apply the necessity test in a ‘definitive’ manner in its examination of the Article 10 claim in the same case – although, as he argues, it may have been unnecessary in the light of the “overbreadth” of the warrant.

This case is a further addition to the strong Strasbourg case law directed to the protection of journalism and newspapers from state intervention and will, doubtless, be welcomed by media supporters of the Convention.


Actions

Information

One response

21 05 2013
Anton’s Weekly International Law Digest, Vol. 4, No. 1 (21 May 2013) | Anton's Weekly International Law Digest

[…] Saint Paul Luxembourg SA v Luxembourg, Newspaper protected under Articles 8 and 10 […]

Leave a Reply




%d bloggers like this: