European court: prosecutors must ask a judge first before ordering media to turn over sources

European court: media right to protect sources

AMSTERDAM — European journalists won greater protection for their sources in a ruling Tuesday by the European Court of Human Rights that faulted Dutch law enforcement for arresting an editor and ordering his magazine to surrender images of an illegal street race.

In an unanimous ruling, the Strasbourg-based court’s 17 judges said Dutch public prosecutors should have sought an independent opinion on whether their criminal investigation overrode the public’s interest in a free press.

Press advocates welcomed the ruling as a landmark that will cement European journalists’ right to protect their sources.

Autoweek magazine, a publication of Sanoma Uitgevers BV, had promised anonymity for participants in the outlawed 2002 race in exchange for being allowed to send a reporter and photographer.

Police believed one of the cars that participated in the race had been used as a getaway car in burglaries of cash machines by a gang that used a shovel loader to break into the ATMs, including one raid in which a bystander was threatened with a gun.

However, prosecutors did not tell the magazine at the time why they wanted the CD of images from the race, saying only that it was a “matter of life and death.”

They arrested the magazine’s editor-in-chief when he refused, and threatened to seize the magazine’s offices and computers and search them until the CD was found.

On the advice of lawyers, the magazine surrendered the CD under protest.

Sanoma quickly filed suit demanding return of the CD and apology from prosecutors. The case eventually went to the Dutch Supreme Court, which upheld prosecutors’ right to demand the CD.

But in their ruling Tuesday, the European Court said the order to turn over the CD was “in itself, an interference with the … company’s freedom to receive and impart information” as guaranteed by the European Convention on Human Rights.

They added that Dutch law was “deficient” in that it didn’t provide a chance for judges to look at how urgent prosecutors’ need for the material really was.

“The Court is well aware that it may be impracticable for the prosecuting authorities to state elaborate reasons for urgent orders or requests,” the ruling said.

But it said there was no reason why prosecutors couldn’t quickly consult with an independent judge first, as they do before installing wiretaps.

The court’s rulings are binding.

The Netherlands’ Justice Ministry said in a statement late Tuesday that it has prepared a change in the law that will expressly allow journalists to protect sources and have judges decide whether a law enforcement demand that they reveal sources is reasonable.

“With this decision, the minister is addressing the core of the ruling,” the statement said.

Parliament must adopt the proposal before it can become law.

Several news organizations, including The Associated Press, Bloomberg and The New York Times, as well as the Open Society Justice Initiative, had submitted arguments to the court supporting Autoweek and its owner, Sanoma.

Peter Noorlander, legal director of the Media Legal Defense Initiative, hailed the ruling as a milestone “that will force a change in law and practice across Europe.”

“Law enforcement can no longer ask media to relinquish journalistic material unless as a matter of last resort in the investigation of a serious crime, and after having sought judicial authorization,” he said.

Judges awarded Sanoma euro35,000 ($45,000) in legal costs.

They said that forcing journalists to disclose sources not only hurts the source whose identity is revealed, but may damage the reputation of media in the eyes of potential sources and the public.