European Court of Human Rights – Sanoma Wins Autoweek Reporter’s Privilege Case versus the Netherlands
A discussion of the judgment of the European Court of Human
Rights dated 14 September 2010
On 14 September 2010, the magazine Autoweek and publisher
Sanoma
won their case before the European Court of
Human Rights ("ECHR") versus the Netherlands. By
demanding Autoweek to surrender photographs, the Netherlands
have acted contrary to the freedom of information as guaranteed
by Article 10 of the European Convention on Human Rights (the
"Convention").
The case concerns a police raid in 2002 at the editorial office
of Autoweek, during which photographs of an illegal street race in
Hoorn were seized. The photographs had been taken by a journalist
of Autoweek after having guaranteed the anonymity of the
participants in the race. The police demanded the handover of the
pictures to track down the suspects of a series of ram raids in
which cash dispensers had been emptied using a shovel loader.
Sanoma was of the view that the demand of the public prosecutor to
surrender the photographs constituted an unlawful violation of the
reporter's privilege of non-disclosure. The public prosecutor
held that the interests of its investigation outweighed this
privilege. Moreover, since the race was held in public, the people
who were in the photographs could not count on these photographs
not being disclosed. In the eyes of the public prosecutor,
Sanoma's reliance on the reporter's right of non-disclosure
could therefore not hold.
The ECHR reached a different opinion. It confirmed once again
that the right of journalists to protect their sources is a
cornerstone of freedom of the press.
By arresting the chief editor of Autoweek for some time and
threatening to seal and search all Sanoma editorial offices (in the
weekend of the wedding of the Dutch Crown Prince), thus
pressurizing Sanoma into surrendering the photographic materials,
the Netherlands has acted in violation of Article 10 of the
Convention.
Moreover, this restriction of the freedom of expression lacked
the statutory basis required by Article 10 (2) of the Convention.
After all, Dutch law allows a public prosecutor to seize
journalistic material without judicial control. The ECHR agrees
with Sanoma that there should always be prior judicial control with
legal procedural safeguards before the public prosecutor may seize
journalistic source materials.
The ECHR ordered the Netherlands to pay Sanoma an expense
reimbursement of € 35,000.
Previously, the Chamber of the ECHR had still denied
Sanoma's claims, as we already reported
here on Media Report. This decision has now
been reversed on appeal. After
the Voskuil case, the Netherlands has been
given another important reprimand in a case about the
journalistic privilege of non-disclosure.
In this case before the ECHR, Sanoma was represented by an attorney
of Kennedy Van der Laan
(Otto Volgenant).
This ruling on a matter of principle may give the last push to
attempts for the creation of a statutory basis for the journalistic
right of non-disclosure. You can read more about this
here (in Dutch).