Protection of journalistic sources and the freedom of expression
Becker v. Norway 5/10/2017 (no. 21272/12)
Articles of journalists and the protection of journalistic sources. Refusal of a journalist to testify as a witness in fear of her sources been revealed. The national courts for her refusal to testify ordered her to pay as damages EUR 3,700 as a fine. Her conviction to the fine was in violation of Article 10 regarding the freedom of expression, as the applicant journalist had not been required to file.
The applicant, Cecilie Langum Becker, is a Norwegian national who was born in 1980 and lives in Oslo (Norway). She is a journalist for DN.no, the internet version of the newspaper Dagens Nœringsliv.
In August 2007 Ms Becker wrote an article about the Norwegian Oil Company, and fears that it might collapse. Her article was based on a telephone conversation with a certain Mr X and a letter he had faxed her which had been written by an attorney, apparently on behalf of bond holders in the oil company, expressing serious concerns about the company’s financial situation. It later transpired that the attorney had in fact drafted the letter only on behalf of Mr X, who owned one bond in the company. After publication of the article, the price of the company’s stock decreased.
Ms Becker was subsequently questioned in June 2008 by the police and told that Mr X had confirmed that he had been her source. She stated that she was willing to say that she had based her article on the faxed letter, but refused to give additional information, referring to journalistic principles on protection of sources.
In June 2010 Ms Becker’s source was indicted for market manipulation and insider trading. During the ensuing criminal case, Ms Becker was summoned as a witness. She refused to testify at any stage of the proceedings, relying on the relevant domestic law on the protection of journalistic sources and Article 10 (freedom of expression) of the European Convention on Human rights. The courts held at first instance that she had a duty to give evidence about her contacts with X. Her appeals were all subsequently rejected, ultimately by the Supreme Court in September 2011. It concluded that, in a situation where the source had come forward, there was no source to protect and the disclosure of his or her identity would therefore have no consequences for the free flow of information. Furthermore, it was a serious criminal case, involving the accusation that Mr X had used Ms Becker to manipulate the bonds market, and her evidence might significantly assist the courts to elucidate the case.
In the meantime, in March 2011, Mr X was convicted at first instance and sentenced to one and a half years’ imprisonment. The conviction was upheld in January 2012. In a judgment on the same date, Ms Becker was also ordered to pay a fine of 30,000 Norwegian Kroner (approximately 3,700 euros) for refusing to reply to questions about her contacts with Mr X.
THE DECISION THE COURT
The Court recalled that the degree of protection for journalists as concerned their right to keep their sources confidential depended on both the journalist and the source. As concerned Ms Becker herself, her journalistic methods had never been called into question and she had not been accused of any illegal activity. As for Mr X, he had been found guilty of a serious crime and given a prison sentence, and had even come forward to the police to confirm that he had been Ms Becker’s source. This meant that the degree of protection to be applied in this case was not of the same level as that which could be provided to a journalist who had been assisted by unknown sources on matters of public interest.
However, the Court equally recalled that a journalist’s protection could not automatically be removed because of a source’s conduct. Nor could knowledge of the source’s identity be decisive for its assessment under Article 10 of the Convention.
In the Court’s view, its assessment turned above all on whether Ms Becker’s evidence had been needed during the criminal investigation and subsequent court proceedings against her source. It pointed out that her refusal to disclose her source (or sources) had not at any point in time hindered either the investigation or proceedings against Mr X. In particular, the prosecuting authority lodged its indictment against Mr X without receiving any information from Ms Becker; the courts were at no point then prevented from considering the merits of the charges; and, in their judgments against Mr X they gave no indication that Ms Becker’s refusal to give evidence had given any cause for concern. On the contrary, the first-instance court which convicted Mr X had been informed by the prosecutor that no motion for extension (pending a final decision on the duty to give evidence) had been made, because the case had been sufficiently disclosed even without Ms Becker’s statement.
Also bearing in mind its previous judgments emphasising the chilling effect wherever journalists are seen to assist in the identification of anonymous sources, the Court was not therefore convinced that either the circumstances in the present case or the reasons provided had justified compelling Ms Becker to testify. There had therefore been a violation of Article 10.
Just satisfaction (Article 41)
The Court held that Norway was to reimburse Ms Becker the fine imposed on her for refusing to give evidence on her source, in the event that it had already been paid.
Judge Tsotsoria expressed a concurring opinion which is annexed to the judgment(echrcaselaw.com editing).