FIRST SECTION

Application no. 21272/12 Cecilie Langum BECKER against Norway lodged on 13 March 2012

STATEMENT OF FACTS

1. The applicant, Ms Cecilie Langum Becker, is a Norwegian national, who was born in 1980 and lives in Oslo. She is represented before the Court by Mr V. Strømme, a lawyer practising in Oslo.

A. The circumstances of the case

2. The facts of the case, as submitted by the applicant, may be summarised as follows.

3. The applicant is a journalist and second editor working for DN.no , a Norwegian internet based version of the newspaper Dagens Nyheter (“ DN ” – News of the Day), which was published by the company DN Nye Medier AS .

4. On 23 June 2010 Mr X was indicted of violations of section 14-3(1) (cf. (4), section 2-8(1), cf. (2) nr. 3) of the 1997 Act on the Trade of Financial Assets, pursuant to which no one should carry out market manipulations in relation to financial instruments. He was accused of having requested Mr Y, Attorney, to draft a letter concerning Det Norske Oljeselskap ASA (“ DNO ” – the Norwegian Oil Company), a limited liability company quoted on the stock exchange. The letter had been addressed to Norsk Tillitsmann ASA (Norwegian Trustee, a company providing reference data for Norwegian securities, including detailed information on i.a. bonds, certificates and structured debt securities issued by governments, municipals, banks and corporate borrowers) and had allegedly given the impression of being written on the behalf of a number of bond holders who were seriously concerned about the company’s liquidity, finances and future, despite having in reality only been written on Mr X’s behalf. The latter had owned only one bond which he had acquired the same day as he had asked Attorney Y to draft the letter.

5. Mr X had informed that he had sent a copy of the above-mentioned letter by telefax to the applicant and that he in this connection had had a telephone conversation with her. The following day, the applicant had written an article entitled “Fears of DNO collapse”, in which she had expressed strong concerns about what had been stated in Attorney Y’s letter, a central feature in the article.

6. When questioned by the police during the investigations against Mr X the applicant replied to certain general questions, inter alia about the contents of the letter, but refused to answer any questions about her contacts with any possible sources.

1. Order on the applicant to testify

7. At the oral hearing held between 7 and 18 February 2010 before the Oslo City Court ( tingrett ), the applicant was summoned as a witness in the case. When present at the hearing on 14 February 2010, she refused to answer questions about possible contacts between her and Mr X and possibly other sources related to the publication by DN.no on 25 August 2007. Relying on Article 125 of the Code of Criminal Procedure and Article 10 of the Convention, she argued that she could not be required to give evidence.

8. By a decision of 15 February 2010, the City Court held that the applicant had a duty to give evidence about her contacts with Mr X in relation to the letter of 24 August 2007 from Attorney Y to Norsk Tillitsmann . As to the scope of that duty, the City Court held that it was limited to contacts with the accused as a source and did not extend to her possible contacts with other unknown sources that she had had contacts with who, should that be the case, would be covered by the protection of journalistic sources.

9. The Public Prosecutor stated that he would not ask for postponement of the hearing since it was the prosecution’s view that the case against Mr X was sufficiently illuminated also without any testimony by the applicant.

2. Mr X’s conviction at first instance

10. On 3 March 2011 the City Court convicted Mr X in accordance with the indictment and sentenced him to one year and six months’ imprisonment (of which nine months were suspended for a trial period of two years). On 28 March 2011 Mr X appealed to the Borgarting High Court ( lagmannsrett ) against the City Court’s assessment of the evidence and application of the law under the question of guilt, its procedure and the sentence (see paragraphs 26 to 28 below).

3. Applicant’s appeal against the order to testify

11. The applicant appealed against the City Court’s order of 15 February 2010 that she testify to the Borgarting High Court ( lagmannsrett ), which rejected the appeal by a decision of 28 April 2011. It found decisive that the source was known, it being sufficient that it had been established beyond reasonable doubt that Mr X was the applicant’s source.

12. On a further appeal to the Supreme Court, the latter by three votes to two rejected her appeal, by a decision of 30 September 2011.

(a) The majority

13. The majority observed that the wording of Article 125 § 1 of the Code of Criminal Procedure did not provide any reason for considering that a prerequisite for the right of a journalist not to disclose the identity of a source was that the source had not disclosed his or her role or that the identity of the source had become known in some other way. However, the wording could not be given decisive weight. It emerged from the preparatory works that the legislator had not, with the chosen formulation, taken a stance on the issue at stake in the present case. There was therefore greater reason to assess whether the rationale underpinning the main rule could also be given significant weight when the person, who had been the source of the information, had given evidence concerning his or her role and had confirmed being the source. It was difficult to see that this should be the case.

14. If the imposition of an obligation on the press to give evidence was limited to cases where the source had come forward, the person who considered giving information to the press would know that it was up to him or her to determine whether the person who received the information would have an obligation to give evidence. There was thus no cogent reason why such a conditional obligation to give evidence should lead to increased scepticism to providing information to the press. The same would to a great extent be true if the obligation to give evidence also applied when the identity of the source had become known in some other way. Whilst the possibility that the identity of the source might be disclosed might well constitute a deterrent, it would hardly make much difference whether what was already known would also have to be confirmed by the recipient of the information.

15. Nor was an obligation on the press to give evidence in such cases likely to weaken the public’s general trust that the press would protect its sources. The situation under review did not concern the disclosure of sources but rather whether the person’s role had become known by other means.

16. The majority further disagreed with the applicant’s view that there was no reason to treat a situation, where the informant had identified himself or herself as the source, differently from those instances cases where the source had consented to being identified. A person who so consented could do so trusting that the recipient of the information would respect the protection of sources as long as the identity of the source was unknown. Once an informant had confirmed being the source, this fact would become known. Should the recipient of the information then refuse to give evidence, this would normally appear futile. In such a situation, an exemption from the obligation to give evidence would in reality not constitute a protection against having to disclose the source but rather a right to avoid contributing to the elucidation of a criminal case.

17. Interpreting Article 125 § 1 of the Code of Criminal Procedure in the light of certain statements made in the preparatory works ( Ot.prp. nr.55 (1997-1998) , pp. 17 and 18) as followed up in the Supreme Court’s case ‑ law ( Norsk Retstidende – “Rt.” 1995-1166 and 2003-28), the majority held that this provision did not apply when the source had come forward and had confirmed his or her role. The same ought probably to apply when the identity of the source had been established beyond reasonable doubt by other means. If the state of the evidence was such that a confirmation by the journalist of the identity of the source would not assist in identifying the source, it seemed unquestionable to maintain the obligation to testify.

18. As to the further question whether a more wide-reaching source protection followed from Article 10 of the Convention, the majority had regard to the Strasbourg Court’s case-law, including Goodwin v. the United Kingdom (27 March 1996, Reports of Judgments and Decisions 1996 ‑ II), Financial Times Ltd and Others v. the United Kingdom (no. 821/03, 15 December 2009) and the Chamber judgment in Sanoma Uitgevers B.V. v. the Netherlands (no. 38224/03, 31 March 2009 – noting that the Grand Chamber had decided the case on a different ground). It observed that in the two British cases a violation had been found under the necessity test even though strong countervailing arguments had been present. The majority further noted that there was no decision where the Court had examined the position of source protection where the source had come forward and where in this sense there was no source to protect. The principal justification for source protection as elaborated by the Court in its case-law was based on the consequences that the disclosure of a source’s identity might have for the free flow of information. However, these considerations did not apply when the source had confirmed his or her participation.

19. Against this background, one could safely assume that no violation of the Convention would arise where a source had come forward and the obligation of the witness to give evidence had been expressly limited so as not to include questions that might lead to other sources being revealed. Also, the charge in this case had been grounded on the fact that the journalist had allowed herself to be used by the source in his efforts to manipulate the bonds market in a criminal manner. It was a serious criminal case, where it seemed likely that the applicant’s evidence might significantly assist in elucidating the concrete circumstances of the defendant’s contact with her.

(b) The minority

20. The minority observed that should the applicant be ordered to testify concerning her possible contact with Mr X about Attorney Y’s letter of 24 August 2007 to Norsk Tillitsmann ASA , she would have to confirm or deny that Mr X was the source for her article in DN.no on 25 August 2007. By making a statement on this matter, she might also inadvertently reveal other potential sources. The legal question at hand was whether a journalist might invoke source protection if the source, without the journalist having revealed it, could be identified with more or less certainty by other evidence.

21. The wording of Article 125 of the Code of Criminal Procedure was absolute and granted members of the press, broadcasting and other media the right to “refuse to answer questions concerning who is ... the source”. The provision made no exception for cases where the identity could be established with more or less certainty in some other way.

22. The protection of sources by journalists was, according to the European Court’s case-law, “one of the basic conditions for press freedom” ( Goodwin , cited above, § 39). The purpose was not to protect the source, but rather the public interest in a free communication of news and opinions ( Rt. 2010-1381 § 52). If journalists were allowed to protect their sources, they would obtain information enabling them to uncover matters in society that was worthy of criticism more easily than they would otherwise. That it was not the source who was protected was reflected inter alia in the fact that it was for the journalist to decide to what extent he or she would invoke such protection. If the journalist was willing to reveal the source, the source could not prevent it.

23. If it were to be a precondition for source protection that no other proof of the source had been presented, source protection would be undermined. One would then enable a source to be tracked down, even if a requirement for waiver of source protection was that the source be identified with a criminal standard of proof. If one were to permit the hearing of evidence on the identity of a source, the media’s working conditions would become considerably more constricted and society’s interest in free communication of information and opinions would suffer.

24. If consent to source disclosure by a potential source should have the effect of removing source protection, the actual source might easily be identified and source protection would be undermined. In the present case Mr X had stated that he was the source. A situation where someone claimed to be the source ought to be considered in the same way as where the source consented to disclosure of his or her identity. A person might incorrectly claim to be the source so that the actual source might be identified by a process of elimination. And even if it were to be true that this person was the source, it would erode the journalist’s right to source protection should the person who was the source be able to cancel the journalist’s right. In addition, journalists often had several sources. If a journalist could be ordered to describe his or her contact with a person who claimed to be the source, his or her contact with other sources might also be revealed.

25. Equally, a combination of someone claiming to be the source and other evidence confirming this, should not lead to source protection being removed. An effective source protection was necessary in order to ensure free communication of information and opinions. It should not be permissible to press journalists to confirm or deny that a person claiming to be the source was in fact the source even where there was weighty evidence to this effect. As mentioned above, it was not the source, but society’s interest in a free communication of news and opinions, which was to be protected.

4. Appeal proceedings in the criminal case against Mr X

26. Mr X’s appeal against the City Court’s judgment of 3 March 2011 (see paragraph 10 above) was examined by the High Court, which summoned and heard the applicant as a witness on 13 January 2012. She answered certain questions but affirmed that she still would not reply to questions about her contacts with Mr X. The following may be read in the relevant court transcript:

“When heard as a witness she informed that she had received Attorney [Y]’s letter by fax on 24 August 2007 at 17:35. She did not wish to answer a question about who she had received the letter from or on her possible contact with Mr [X] during the period before or after this point in time. The presiding judge pointed out to the witness that after a legally enforceable decision by the Supreme Court she was obliged to give evidence about her contacts with Mr [X]. The presiding judge underlined that an omission to reply to such questions could constitute a ground for the imposition of a fine for an offence against the good order of court proceedings [ “rettergangsbot” ]. It was emphasised that the duty to reply lay on the witness personally and that a possible fine would be imposed on her personally.”

27. On account of her refusal to comply, the High Court, by a decision of 25 January 2012, ordered the applicant to pay NOK 30,000 (EUR 3,720) in fine for an offence against the good order of court proceedings, failing which she would be liable to ten days’ imprisonment.

28. By a judgment of the same date, the High Court convicted Mr X on the charges and sentenced him to one year and nine months’ imprisonment.

B. Relevant domestic law

29. Article 125 § 1 of the Code of Criminal Procedure provided:

“The editor of a printed publication may refuse to answer questions concerning who is the author of an article or report in the publication or the source of any information contained in it. The same applies to questions concerning who is the source of other information that has been confided to the editor for use in his work.”

C. Relevant Council of Europe Material

30. On 8 March 2000, the Committee of Ministers of the Council of Europe adopted a Recommendation (No. R (2000) 7) on the right of journalists not to disclose their sources of information. The Recommendation provided, at Principle 3, as follows:             

“a. The right of journalists not to disclose information identifying a source must not be subject to other restrictions than those mentioned in Article 10, paragraph 2 of the Convention. In determining whether a legitimate interest in a disclosure falling within the scope of Article 10, paragraph 2 of the Convention outweighs the public interest in not disclosing information identifying a source, competent authorities of member states shall pay particular regard to the importance of the right of non-disclosure and the pre-eminence given to it in the case-law of the European Court of Human Rights, and may only order a disclosure if, subject to paragraph b , there exists an overriding requirement in the public interest and if circumstances are of a sufficiently vital and serious nature.

b. The disclosure of information identifying a source should not be deemed necessary unless it can be convincingly established that:

i. reasonable alternative measures to the disclosure do not exist or have been exhausted by the persons or public authorities that seek the disclosure, and

ii. the legitimate interest in the disclosure clearly outweighs the public interest in the non-disclosure, bearing in mind that:

- an overriding requirement of the need for disclosure is proved,

- the circumstances are of a sufficiently vital and serious nature,

- the necessity of the disclosure is identified as responding to a pressing social need, and

- member states enjoy a certain margin of appreciation in assessing this need, but this margin goes hand in hand with the supervision by the European Court of Human Rights.

c. The above requirements should be applied at all stages of any proceedings where the right of non-disclosure might be invoked.”

31. Principle 4 (“Alternative evidence to journalists’ sources”) stated:

“In legal proceedings against a journalist on grounds of an alleged infringement of the honour or reputation of a person, authorities should consider, for the purpose of establishing the truth or otherwise of the allegation, all evidence which is available to them under national procedural law and may not require for that purpose the disclosure of information identifying a source by the journalist.”

COMPLAINT

32. The applicant complained that the Supreme Court’s decision of 30 September 2011 rejecting her appeal against the judicial order that she give evidence about her contacts with Mr X, had given rise to an unjustified interference with her right not to be compelled to disclose her journalistic sources under Article 10 of the Convention. The measures had not been “prescribed by law” nor been “necessary in a democratic society”.

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QUESTIONS TO THE PARTIES

1. Did the right to journalistic source protection, as the Court has interpreted in its case-law into the freedom of expression under paragraph 1 of Article 10 of the Convention, apply to the concrete circumstances of the present case?

2. Did the disputed court order requiring the applicant to give evidence in the criminal proceedings against Mr X about her contacts with the latter, an appeal against which was rejected by the Supreme Court on 30 September 2011, constitute an interference with her right to freedom of expression under this provision?

3. In the event that the afore-mentioned question is to be answered in the affirmative, was the impugned interference “prescribed by law”?

4. Was the interference “necessary in a democratic society” for the pursuance of one or more of the legitimate aims enumerated in paragraph 2 of Article 10, having regard to factors such as:

(a) the fact that Mr X had affirmed being the source;

(b) the scope of the order to give evidence;

(c) any possible risk that evidence given by the applicant in compliance with the court order might lead to the disclosure of other possible sources and that sources generally thus might be deterred from assisting the press in informing the public on matters of public interest;

(d) the fact that the Public Prosecutor stated that he would not ask for postponement of the hearing since he was of the view that the case against Mr X was sufficiently illuminated also without any testimony by the applicant, which view was also confirmed by the outcome of the trial?