The Protection of Journalistic Sources

In the Netherlands, the protection of journalistic sources is still not enshrined in the law. On the basis of the Autoweek judgment of the ECHR of 14 September 2010 it is necessary that the use of a coercive measure by which sources may be revealed is always tested in advance by the court. This requires an amendment of the law.

Recently, the Board of Procurators General amended the text of its 'Instructions for Use of Coercive Measures against Journalists' (in Dutch). The new regulation entered into effect on 1 March 2012. This concerns coercive measures such as monitoring and following journalists, searches of editorial premises and seizure of journalistic material. These new Instructions are an improvement of the journalists' position. The starting point is that the use of coercive measures against journalists to retrieve the identity of a source is not permitted. The use of a coercive measure is only permitted in the event of the detection and prevention of very serious offenses: crimes which may seriously damage the life, security or health of people, such as tracking down explosives in the event of an imminent attack, or detecting a suspect of whom it is suspected that he will commit serious crimes again. When there is no such 'very serious offense', no coercive measures may be used against journalists. The concept of 'journalist' includes everyone who professionally occupies himself with the collection and subsequent dissemination of information via the media. This includes members of the editorial staff, camera and sound crew. New media such as news sites and professional bloggers are also mentioned explicitly.

In 2011, the Dutch Media and Communication Law Association formed a Study Committee for the Journalistic Protection of Sources (and the author of this article is a member of this association). This Study Committee advised the Public Prosecution Service in advance about the new Instructions, and made the following ten recommendations in this respect.

  1. The Instructions must apply explicitly to all investigation methods and investigative powers (besides claims to surrender also to monitoring, following, searches, number recognition, telecommunication investigation, forensic footprints, etc.).
  2. The starting point must be that a prior judicial review will always take place, resulting in a reasoned decision, with the possibility of appeal. The Public Prosecution Service must substantiate on good grounds how the principle of subsidiarity has been fulfilled.
  3. The sealing of data carriers during the entire judicial review process is a method that must be guaranteed. The practical aspects of the sealing must be elaborated in the Instructions (who is responsible for the sealing, which process is followed in this respect, etc.). Preferably, the data must be submitted to the court for sealing and not to the Public Prosecution Service.
  4. The description of the group entitled to the journalistic right of non-disclosure and of editorial confidentiality must not be too limited and with too many stipulations. A broad definition is preferable. For instance: 'any person who contributes professionally or regularly to the dissemination of information to the public via a medium'.
  5. No connection should be made with a confidentiality arrangement that the journalist may have agreed or not, because in practice there are many cases in which the source must remain protected in the absence of such an explicit arrangement.
  6. When using coercive measures against journalists, a test must always be made against Article 10 of the ECHR in connection with the risks of a 'chilling effect' which is in the nature of the use of coercive measures.
  7. When describing the possibility of breaking the right to protection of sources, the criterion used by the ECHR and the Dutch Supreme Court should be followed. A breach of Article 10 of the ECHR is only allowed in the event of an 'overriding requirement in the public interest'.
  8. By demanding the surrender of the IP addresses, news organizations are being used as an extension of the Public Prosecution Service, and this is fundamentally incorrect.
  9. It is very well possible that a journalist commits a criminal offense but a right to protection of sources still exists. When a journalist commits a criminal offense, coercive measures may be allowed, but these measures may not have the nature of censorship. The starting point should be that without a prior judicial review, in such cases no journalistic material is seized, no photographic material is copied and no other coercive measures are taken that affect the right to protection of sources.
  10. Every policeman should be aware of the principle of the protection of sources and of the key rule that coercive measures are only allowed after a judicial review.

These recommendations have been copied for the most part in the new Instructions. An exception is the regulation on the surrender of IP addresses, about which the Instructions stipulate that these addresses must first be surrendered to the Public Prosecution Service (sealed, if necessary) whereupon the journalist has to start a legal action himself. The definition of 'journalist' is a little less broad than proposed: the Instructions are limited to those who 'professionally' carry out journalistic activities. This description is somewhat more limited than the one proposed by the Study Committee, which also includes the group that contributes 'regularly' to the dissemination of information.

These Instructions are definitely a step in the right direction, but they are not enough, because Instructions of the Public Prosecution Service are not an Act. It is important that the Dutch legislator gives the protection of journalistic sources a statutory basis in the short term. That is what the ECHR demands of the Netherlands. The Autoweek judgment was rendered more than eighteen months ago, and still there is no official bill yet. It is about time that the Minister of Security and Justice now quickly submits a bill for an Act for the Protection of Journalistic Sources.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.