On October 5, 2017, the European Court of Human Rights (ECtHR) unanimously ruled that Norway violated a journalist’s rights under Article 10 (right to freedom of expression) of the European Convention of Human Rights (ECHR) because the Supreme Court of Norway imposed a fine on her for refusal to testify on her source, who had already made himself known. See ECtHR, Becker v. Norway, no. 21272/12, ECHR 2017, Judgment of 5 October 2017. The Court’s decision turned on the fact that it was not necessary to the case to retrieve the journalist’s testimony, since the individual suspected of criminal activity was charged and convicted without her statement. See id. at para. 78. This case goes beyond the ECtHR’s existing jurisprudence on the application of the right to freedom of expression to the protection of journalists’ sources. Prior to this case, the ECtHR had yet to address the question of whether a court may compel testimony when the source’s identity has already been revealed by the source’s own admission. See id. at paras. 73-74. The ECtHR decided that a source’s own disclosure is not decisive of whether a journalist should be compelled to disclose the source in his or her own testimony. See id. at para. 75.
The applicant in this case, C. Langum Becker, is a Norwegian journalist who is employed by DN.no, which is an internet-based newspaper in Norway. See id. at para. 5. The applicant wrote a story based on a fraudulent letter that was sent to her by a man referred to as Mr. X; the letter expressed concerns regarding the future of the Norwegian Oil Company (DNO). See id. at para. 6. Reporting on the letter, the applicant wrote a news article entitled “Fears of DNO Collapse,” echoing the concerns addressed in the letter from Mr. X. Following the publication of the article, the company’s stocks decreased. See id. at para. 7.
Mr. X was charged and convicted for market manipulation and insider trading. See id. at para. 6. During investigations, Mr. X admitted that he crafted the letter and that he was the source of the applicant’s news article. See id. at para. 8. During questioning, the police presented the applicant with a signed confirmation by Mr. X stating that he identified himself as the source of the news article, and proceeded to question the applicant. See id. at para. 9. The applicant was only willing to confirm to the police that she received a letter at a specified time, and did not agree to provide any other information, which the applicant considered was within “journalistic principles on protection of sources.” See id. at para. 9.
Subsequently, in the criminal case against Mr. X, the applicant was called as a witness, but she refused to answer questions about her contacts with Mr. X and other sources. See id. at para. 10. The applicant invoked the protections provided in the Code of Criminal Procedure of Norway that state that journalists may refuse to provide information on the identity of their source of information. See id. at paras. 10, 19, 37. She also asserted freedom of expression protections under Article 10 of the ECHR as a basis for refusing to provide information on Mr. X. See id. at para. 10.
The prosecution in the criminal case against Mr. X asked the court to make a decision on whether the applicant should be compelled to testify. See id. at para. 11. The Oslo City Court held that the applicant had a duty to disclose evidence about her contacts with Mr. X, but not other unknown sources. See id. at para. 13. The applicant appealed this judgment. See id. at para. 18 The criminal case against Mr. X was decided before the appeal, and Mr. X was convicted. See id. at para. 14-15.
The intermediate court agreed with the lower court that the applicant had to disclose the evidence, and the applicant submitted a second appeal to the Supreme Court of Norway. See id. at para. 18-19. The Supreme Court rejected the applicant’s appeal, holding that the domestic law on protection of journalists’ sources did not apply in cases where the source was self-identified. See id. at para. 24. Regarding the alleged violation of Article 10 under the ECHR, the Supreme Court noted that the ECtHR never addressed the specific situation of an already identified source. See id. at para. 25. The Supreme Court decided that the reasoning behind protecting journalists’ sources is “based on the consequences that the disclosure of a source’s identity might have for the free flow of information,” which, it determined, is not applicable to this case. See id.
Mr. X appealed his conviction, and the court ordered the applicant’s testimony on appeal, warning that failure to comply with the order is grounds for imposing a fine. See id. at para. 34. Following her refusal to testify, the Supreme Court imposed a fine of 30,000 Norwegian kroner, which is around 3,700 euro, on the applicant. See id. at para. 35.
Article 10 of the ECHR
The applicant filed a complaint to the ECtHR alleging that the Supreme Court’s decision, which rejected her appeal of the lower courts’ decision, violated her right to freedom of expression under Article 10 of the ECHR. The applicant alleged that the compelled testimony would force her to identify at least one of her sources, which violates her right “to receive and impart information,” which is protected under Article 10. See id. at para. 4.
As the applicant and the State both agreed that the State had interfered with the applicant’s rights under Article 10, the ECtHR also found an interference with Article 10. See id. at para. 59. It then turned to examine whether that interference was justified. Under the ECHR, an interference with the right to freedom of expression under Article 10 is justified if the interference is prescribed by law, necessary in a democratic society, and in the pursuit of a legitimate aim, which includes the legitimate aim of preventing a crime. See id. at para. 42. Finding that the interference was in pursuit of the prevention of a crime, the ECtHR only examined the other two requirements – that the interference be prescribed by law and necessary in a democratic society. See id. at para. 60.
The ECtHR reviewed whether the ordered disclosure of the applicant’s source, Mr. X, is prescribed by law, and agreed with the Norwegian court that the decision to compel testimony was established within the domestic law on criminal procedure. See id. at paras. 61, 63-64. The Court noted that for an interference to be prescribed by law, it need not only exist within the domestic law but also be accessible and foreseeable to those individuals to whom it applies. See id. at para. 62.
Next, the ECtHR discussed whether this type of disclosure is necessary to achieve the legitimate aim sought, which requires the means used to be proportionate to the legitimate aim, and it determined that it was not necessary to compel the applicant’s testimony on Mr. X to achieve the aim of preventing a crime. See id. at paras. 75, 82. Pre-existing knowledge of the source’s identity, the Court held, is not a decisive factor in weighing the proportionality of the interference to the legitimate aim sought. See id. at para. 75. Further, the ECtHR found that there was no public threat of further injury to the company by the applicant’s failure to disclose the identity, and that it’s jurisprudence on the issue has held that a source’s criminal conduct cannot alone be sufficient grounds to compel disclosure. See id. at paras. 74, 77.
Thus, the ECtHR stated that the question of necessity depended on whether the investigation and criminal prosecution of Mr. X required the evidence sought. Although the Court also considered the gravity of Mr. X’s offense, it found that the investigation and prosecution were not hindered by the applicant’s lack of testimony; Mr. X was convicted without the applicant’s testimony. Therefore, the disclosure was not necessary. See id. at para. 78-80. Accordingly, the Court held that there was no sufficient justification to compel the applicant’s testimony and the State violated the right to freedom of expression under Article 10 of the ECHR. See id. at para. 82.
Past ECtHR Jurisprudence on the Protection of Journalists
The ECtHR has previously invalidated disclosure orders. For example, in Goodwin v. the United Kingdom, the ECtHR highlighted the significance of having a free press, and the public interest of protecting journalists’ disclosure. See ECtHR, Goodwin v. The United Kingdom, no. 17488/90, Rep. 1996-II, Judgment of 27 March 1996. Further, in Financial Times Limited and Others v. United Kingdom, the ECtHR decided that the chilling effect on journalists of having to make disclosures was of greater value than preventing the further dissemination of confidential information. See ECtHR, Financial Times Ltd and Others v. The United Kingdom, no. 821/03, ECHR 2009, Judgment of 15 December 2009. In both those cases, however, the source’s identity was anonymous, which is distinct from the instant case, where the source’s identity was self-disclosed. The ECtHR noted that there is less protection in a case where the source is known, but it still recognized the compelling public policy interests of preserving freedom of expression in a proportionality assessment with other competing public interests. See Becker v. Norway, Judgment of 5 October 2017, para. 76.
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