Unjustified access to a journalist’s telephone data and its geographical location for 16 months violated the protection of her journalistic sources.
JUDGMENT
Sedletska v. Ukraine 01.04.2021 (app. no. 2634/18)
SUMMARY
Protection of journalistic sources and freedom of expression.
The case concerned a court order accessing the data of the applicant’s mobile phone, as she worked as a journalist for the Radio Free Europe / Radio Liberty radio station, by the prosecutor’s office, thus ensuring that her journalistic sources were not protected. The declassification was ordered for the purpose of investigating serious corruption offenses of judges and prosecutors, in its absence and without the observance of procedural guarantees.
The Court pointed out that access to the applicant ‘s personal mobile data was tantamount to’ interfering ‘with her rights under Article 10 of the Convention. The ECtHR found that this intervention pursued “legitimate aims” under Article 10 § 2, namely, “the prevention of crime” and the protection of the reputation or rights of others “, however in the present case they were not observed the procedural guarantees provided by law, as the decision to lift the secrecy was issued in its absence, while the applicant was informed of it by chance. However, the ECtHR found that the substance of her arguments before it concerned the relevance and adequacy of the justifications provided by the judicial authorities for approving the intervention in her personal data and therefore considered it necessary to examine whether the intervention was necessary in a democratic society.
As the domestic courts did not substantiate that access to the applicant’s mobile data and its geographical location for 16 months was justified by an ‘overriding need in the public interest’, they did not consider whether there were more appropriate means of obtaining the information. the ECtHR ruled that Article 10 of the ECHR had been violated and that intervention was not necessary in a democratic society.
The Court awarded EUR 4,500 in respect of non-pecuniary damage and EUR 2,350 in respect of costs and expenses.
PROVISIONS
Article 10
PRINCIPAL FACTS
The applicant is a journalist at the Kyiv office of Radio Free Europe/Radio Liberty. She is also the editor-in-chief of the “Schemes: Corruption in Detail” television programme. The programme has been running since 2014 and many of its issues concern senior prosecutors and politicians.
In 2015 the National Anticorruption Bureau of Ukraine (“the NABU”) instituted criminal proceedings against a prosecutor, K., on suspicion of unjust enrichment. In the framework of those proceedings, in the period between May and July 2016, the NABU tapped the telephone of Ms N., K.’s partner.
In 2017 K. started working at the Prosecutor General’s Office (“the PGO”).
On 13 November 2017 the Obozrevatel media website published an article stating that in the summer of 2017 the head of the NABU, S., had held a closed meeting with some media representatives during which he had disclosed confidential information about some ongoing criminal investigations, including the one against K. It was apparent from this article that, among other things, the media representatives had listened to a recording of a taped telephone conversation between Ms N. and her acquaintance, in which the two of them were discussing details of Ms N.’s private life. The Obozrevatel article was accompanied by an audio file presented as the audio recording of that meeting, including the recording of Ms N.’s telephone conversation with her acquaintance.
The same day M., a Member of Parliament, complained to the Prosecutor General that the above article was unlawful and had indicated that S. had also breached the rules of confidentiality pertaining to ongoing criminal proceedings, as well as Ms N.’s right to respect for her private life in divulging information about her to the journalists.
On 15 November 2017 Ms N. also complained to the PGO about the same matter, asking that criminal proceedings be instituted against S. and his colleagues for breaching her privacy and making public the material of the ongoing criminal investigations.
THE DECISION OF THE COURT….
i) Whether there was an interference with the applicant’s freedom of expression
In the present case, the national courts authorised the PGO to access the applicant’s communications data stored by her mobile telephone operator. The parties agreed that the impugned authorisation, regardless of whether either of the two relevant court orders had been enforced, had amounted to an “interference” with the applicant’s rights under Article 10 of the Convention. The Court sees no reason to hold otherwise.
The Court must therefore examine whether the interference was justified under the second paragraph of Article 10 of the Convention, that is, whether it was “prescribed by law”, pursued one or more legitimate aims and was “necessary in a democratic society”.
(1) Whether there was “a legitimate aim” for the interference
The Court first notes that the aforementioned authorisation was given for the purpose of furthering the investigation concerning the leak of confidential information regarding ongoing criminal proceedings and the private life of Ms N. The Court is therefore satisfied – and it has not been disputed by the parties – that the interference at issue pursued some of the “legitimate aims” listed in Article 10 § 2, in particular, “the prevention of … crime” and “protection of the reputation or rights of others”.
(2) Whether the interference was “prescribed by law”
In considering whether the interference at issue was “prescribed by law”, the Court observes that access to the applicant’s communications data was authorised by the national judicial authorities under Article 163 of the CCP . The measure in question therefore had some basis in domestic law. In so far as the applicant complained that the relevant law lacked procedural safeguards, notably as the court decision in her case had been taken at an ex parte hearing, it appears that, under the CCP, ex parte hearings are only allowed in exceptional cases. Under Article 163 § 2, in order to obtain an ex parte hearing, the party who files a request for access to “items and documents” must prove “that there are sufficient grounds to believe that a real threat exists of the items and documents concerned being altered or destroyed”. In all other cases, as it appears from Article 163 § 1, the national courts are required to summon the persons concerned by such access requests to the hearings. In the Court’s view, this general requirement constitutes an important procedural safeguard for all persons potentially concerned by data access requests, including journalists.
It appears that in the applicant’s case, this safeguard was not implemented owing to the particular interpretation of Article 163 of the CCP by the District Court. Rather than enunciating specific reasons for considering the PGO’s request without summoning the applicant, the District Court made a formulaic reference to the “threat of the information sought being altered or destroyed”. In the Court’s view, giving more ample reasons for justifying the above finding was of significant importance, in particular, because the data in question, stored by the applicant’s mobile operator, was not in her personal possession. As a consequence of the District Court’s decision to apply Article 163 § 2, the applicant was also not notified by it that the PGO had obtained an authorisation to access her communications data and, once she learned about that authorisation from other sources, the District Court refused to provide her with a copy of its respective order. It appears that had it not been for a pure chance that the applicant became aware of that order, she might not have been able to make use of any procedural safeguards existing in the domestic law for protecting her rights. The Court is deeply concerned with this possibility, which would be tantamount to arbitrariness. However, given that in this particular case, the applicant did in fact learn about the existence of the disputed order and the Court of Appeal found it possible to accept her appeal for consideration and to quash the order, the Court finds that the crux of the applicant’s remaining argument before it concerns the relevance and sufficiency of the reasons provided by the judicial authorities for authorising the interference with her protected data. The Court therefore finds it necessary to continue its examination of the case by turning to the question whether the interference was necessary in a democratic society.
(3) Whether the interference was “necessary in a democratic society”
Examining the present case in the light of the aforementioned principles, the Court considers that the reasons given by the domestic judicial authorities for the interference with the applicant’s rights under Article 10 were not sufficient to demonstrate that the interference was proportionate and that it corresponded to a pressing social need.
In this connection, the Court notes firstly that the District Court’s order of 27 August 2018 authorised the PGO to collect a wide range of the applicant’s protected communications data concerning her personal and professional contacts over a sixteen-month period. The disputed authorisation included, in particular, access to information concerning the time and duration of the applicant’s communications and the telephone numbers of her contacts. This data could possibly include identifiable information concerning the applicant’s confidential sources which had no relevance to the criminal proceedings regarding the alleged misconduct of S. (compare and contrast Weber and Saravia v. Germany (dec.), no. 54934/00, § 151, ECHR 2006‑XI). The risk of detriment to the interests protected by Article 10 was all the greater as the focus of the applicant’s work as a journalist had been on investigating high-profile corruption, including corruption within the PGO itself. The District Court’s order contained no safeguards excluding the possibility that information potentially leading to the identification of any such sources would become available to a wide circle of PGO officials and could be used for purposes unrelated to the criminal investigation concerning S. These elements are sufficient for the Court to conclude that the scope of the data access authorisation in the court order of 27 August 2018 was grossly disproportionate to the legitimate aims of investigating a purported leak of classified information by S. and protecting Ms N.’s private life.
The Court agrees that the new data access authorisation given on 18 September 2018 by the Court of Appeal, which replaced the District Court’s authorisation and was limited essentially to the collection of her geolocation data over a sixteen-month period, could remove the aforementioned threat of identification of the applicant’s sources unrelated to the proceedings against S., assuming that the PGO had not previously received any such data from the applicant’s mobile operator, as alleged by the Government. However, it is notable that S. was himself treated by the PGO authorities as the applicant’s journalistic source. They sought access to the applicant’s data precisely to test an assumption that S. had met with the applicant in order to provide her with confidential information relevant to her activity as an investigative journalist and, if so, to use her data as evidence in criminal proceedings against him. The fact that the name of the applicant’s purported source was known to the authorities and that he was implicated in a criminal offence did not as such remove the applicant’s own protection under Article 10 of the Convention.
The Court finds that the text of the Court of Appeal’s ruling did not sufficiently respond to these requirements. Firstly, this ruling authorised access to the applicant’s protected geolocation data over a sixteen-month period. In view of the length of that period and the size of the geographical area of the city centre of Kyiv in respect of which the geolocation data was sought[1], the applicant’s telephone could have been registered there on a number of occasions which had no relevance to the case under investigation by the PGO. Secondly, by way of justifying the pressing social need for the interference with the applicant’s rights, the Court of Appeal referred only to the purpose of “achieving efficiency” in a criminal investigation and establishing “more exactly the time and place” of the purported confidential meeting without providing any indication why these considerations outweighed the public interest in non-disclosure of the applicant’s protected geolocation data. Thirdly, based on the case file, at the relevant time there remained considerable uncertainty that any information pertinent to the proceedings against S. would be retrieved from the applicant’s communications data. It appears from the material in the Court’s possession that at the relevant time it had not been unequivocally established that S.’s alleged meeting with the journalists had been held on the NABU’s premises or some other premises located within the geographical area targeted by the PGO for the collection of the applicant’s geolocation data, or that the applicant had indeed been a participant in the meeting. Even so, the applicant might not have necessarily had her telephone with her at the time. Fourthly, it does not appear that the Court of Appeal delved into the question whether there were other more targeted means of obtaining the information which the investigative authority had hoped to retrieve from the applicant’s communications data.
In view of the above considerations, the Court is not convinced that the data access authorisation given by the domestic courts was justified by an “overriding requirement in the public interest” and, therefore, necessary in a democratic society.
There has accordingly been a breach of Article 10 of the Convention in the present case.
Just satisfaction:
Non-pecuniary damage: EUR 4,500
Costs and expenses: EUR 2,350
