Information Note on the Court’s case-law 211
October 2017
Becker v. Norway - 21272/12
Judgment 5.10.2017 [Section V]
Article 10
Article 10-1
Freedom to impart information
Freedom to receive information
Journalist compelled to give evidence against source who had already come forward:violation
Facts – In August 2007 the applicant, a journalist, wrote an article concerning a company quoted on the stock exchange, based on a telephone conversation with a Mr X and a letter drafted by an attorney.
In June 2010 Mr X was indicted for market manipulation and insider trading. He was accused of having requested the attorney to draft the letter which gave the impression that it had been written on behalf of a number of bond holders concerned about the company’s liquidity, finances and future, when in fact, it had been written solely on behalf of Mr X, who owned a single, recently acquired bond. Following the publication of the applicant’s article, the price of the company’s stock fell.
The applicant was subsequently questioned by the police, who informed her that Mr X had admitted giving her the letter. The applicant said she was willing to state that she had received the letter but she refused to give additional information on the grounds that journalistic sources were protected.
During the criminal proceedings against Mr X, the applicant was summoned as a witness. Relying on domestic law and Article 10 of the Convention, she refused to testify. The first-instance court held that the applicant had a duty to give evidence about her contacts with Mr X in relation to the attorney’s letter. In 2011 the Supreme Court dismissed the applicant’s appeal, holding that no violation of the Convention would arise where a source had come forward and as such, there was no source to protect. The principle justification for source protection was based on the consequences that the disclosure of a source’s identity might have for the free flow of information. The applicant was fined EUR 3,700 for an offence against the good order of court proceedings.
Before the European Court the applicant alleged that she had been compelled to give evidence that would have enabled her journalistic sources to be identified, in violation of her right under Article 10 to receive and impart information.
Law – Article 10: The case turned on whether the interference with the applicant’s rights had been necessary in a democratic society. In that connection, the Court referred to the principles governing the protection of journalistic courses developed in a series of judgments.* The Court had not previously had occasion to consider the specific question arising in the present case. However, its case-law indicated that a journalist’s protection under Article 10 could not automatically be removed by virtue of a source’s own conduct.
When assessing whether the interference had been necessary the Court had to examine whether relevant and sufficient reasons had been adduced for ordering the applicant to give testimony. The circumstances concerning Mr X’s identity were only one element in that assessment. While agreeing with the Supreme Court that the fact that a source had come forward might be apt to mitigate some of the concerns intrinsic to measures implying source disclosure, the knowledge of Mr X’s identity could not be decisive for the proportionality assessment.
The protection afforded to journalists when it came to their right to keep their sources confidential was two-fold as it related not only to the journalist, but also and in particular to the source who volunteered to assist the press in informing the public about matters of public interest. Accordingly, the circumstances with respect to both Mr X’s motivation for presenting himself as a “source” to the applicant and his coming forward during the investigation suggested that the degree of protection under Article 10 to be applied in the present case could not reach the same level as that afforded to journalists assisted by persons of unknown identity.
That Mr X had been charged with having used the applicant as a tool to manipulate the market was relevant to the proportionality assessment. Source disclosure had become an issue in the instant case at a time when there were no questions of, for example, preventing further injury to the company or its shareholders. The source’s harmful purpose had therefore carried limited weight when the order to testify was made.
The decision as to whether the order against the applicant was necessary mainly turned on an assessment of the need for her evidence during the criminal investigation and subsequent court proceedings against Mr X. Mr X had not argued that it was necessary that the impugned order be imposed on the applicant for the purpose of safeguarding his rights. While account had to be taken of the gravity of the alleged offences, the applicant’s refusal to disclose her source did not at any point hinder the investigation or the proceedings against Mr X. The prosecuting authority had lodged its indictment against Mr X without having received any information from the applicant that could reveal her source. The domestic courts had not been prevented from considering the merits of the charges. After the applicant appealed against the order compelling her to give evidence, the prosecutor had stated that he would not seek an adjournment as the prosecuting authority still considered the case to be adequately disclosed without the applicant’s testimony. Finally, the domestic courts judgments against Mr X gave no indication that the applicant’s refusal to give evidence had raised any concerns on their part regarding the case or evidence against Mr X.
The Court had previously emphasised that a chilling effect would arise wherever journalists were seen to assist in the identification of anonymous sources. In the present case the disclosure order was limited to ordering the applicant to testify on her contact with Mr X, who had himself declared that he was the source. While it might be true that the public perception of the principle of non-disclosure of sources would suffer no real damage in this situation, the Court considered that the circumstances in the present case were not sufficient to compel the applicant to testify. The reasons adduced in favour of compelling the applicant to testify, though relevant, were insufficient. Thus, even bearing in mind the appropriate level of protection applicable to the particular circumstances of the case the Court was not convinced that the impugned order was justified by an overriding requirement in the public interest and, hence, necessary in a democratic society.
Conclusion: violation (unanimously).
Article 41: Respondent State required to reimburse any fine paid by the applicant; no claim made in respect of non-pecuniary damage.
* See Goodwin v. the United Kingdom [GC], 17488/90, 27 March 1996; Sanoma Uitgevers B.V. v. the Netherlands [GC], 38224/03, 14 September 2010, Information Note 133; and Financial Times Ltd and Others v. the United Kingdom, 821/03, 15 December 2009, Information Note 125.
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This summary by the Registry does not bind the Court.
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