Information Note on the Court’s case-law No. 117
March 2009
Sanoma Uitgevers B.V. v. the Netherlands - 38224/03
Judgment 31.3.2009 [Section III]
Article 10
Article 10-1
Freedom of expression
Police seizure of material that could have led to identification of journalistic sources: no violation
[This case was referred to the Grand Chamber on 14 September 2009]
Facts: The applicant company was the publisher of a car magazine. Journalists from the magazine attended an illegal road race and were given permission by the organisers to take photographs on condition that they did not disclose the participants’ identity. They planned to publish an article on illegal road racing in which the photographs would be edited to hide the identities of both the cars and the participants. The original photographs were stored on a CD-ROM. Before the article could be published, the company’s editor-in-chief was served with a summons from a public prosecutor requiring the company to surrender the photographs as they were required in connection with a criminal investigation into offences of theft and/or robbery. When the editor-in-chief refused to hand them over, he was threatened with prosecution and detention and told that the company’s premises would be closed for the entire weekend so that they could be searched. This would have entailed important financial losses for the company. The editor-in-chief was later detained for a period of four hours before the CD-ROM containing the photographs was surrendered after an investigating judge had stated that the needs of the criminal investigation outweighed the company’s journalistic privilege. The seizure was subsequently ruled lawful by a regional court after it had heard evidence from the public prosecutor that the photographs were required to help identify a car that had been used in raids on cash dispensers, and that the investigation did not concern the road race. That decision was upheld on appeal.
Law: The interference with the applicant’s right to freedom of expression was prescribed by law and pursued the legitimate aim of preventing disorder or crime. As to the necessity for such interference in a democratic society, the Court reiterated that an order for the disclosure of journalistic sources could only be compatible with Article 10 if it was justified by an overriding requirement in the public interest. In cases involving the compulsory handover of journalistic material, the domestic authorities were entitled to balance the interest in prosecuting the suspected crimes against the interest in the protection of journalistic privilege. Relevant considerations included the nature and seriousness of the crimes, the precise nature and content of the information demanded, the existence of alternative means of obtaining it, and any restraints on the authorities’ obtention and use of the materials concerned.
Applying those principles to the applicant’s case, the Court noted that the suspected offences were serious as they had involved the use of firearms, the information contained on the CD-ROM was relevant and capable of identifying the offenders, there were no reasonable alternatives to identify the vehicle used by the suspects and, lastly, the only use to which the information appeared to have been put was to identify and prosecute the offenders. The applicant company’s sources did not appear to have been put to any inconvenience. The Court also noted with satisfaction that the public prosecutor had obtained the investigating judge’s approval to the measure, although it found it disquieting that this was no longer a requirement of the domestic law. In sum, while agreeing with the regional court that the police and public prosecutors had acted with a regrettable lack of moderation, the Court found that in the very particular circumstances of the case, the reasons advanced for the interference were “relevant” and “sufficient” and “proportionate to the legitimate aims pursued”.
Conclusion: no violation (four votes to three).
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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