CONCURRING OPINION OF JUDGE TSOTSORIA

I wholeheartedly agree that there has been a violation of Article 10 in this case. I am not convinced, however, by some of the arguments advanced in the judgment; in particular, the point made in paragraph 76 that because of Mr X’s motivation and the fact that he came forward during the investigation, “the degree of protection under Article 10 of the Convention to be applied in the present case cannot reach the same level as that afforded to journalists who have been assisted by persons of unknown identity to inform the public about matters of public interest or matters concerning others” (emphasis added) .

The notable question that derives from this paragraph is whether the level of protection of a journalist’s right not to disclose a source, in the framework of Article 10 of the Convention, diminishes in situations where the source himself/herself comes forward and cooperates with the investigation. I consider that the majority’s approach to this issue may cause discomfort and lead to divergence in the case-law, weakening the protection of Article 10. Moreover, my belief is that the majority’s line of reasoning as to this question does not stem from the case-law of the Court.

It is well-established in the case-law – and the judgment also affirms this – that freedom of expression constitutes one of the essential foundations of a democratic society and that the safeguards to be afforded to the press are of particular importance (see, among other authorities, Pedersen and Baadsgaard v. Denmark [GC], no. 49017/99, § 71, ECHR 2004-XI) especially in view of the specific role of the media in exercising public scrutiny over public and private sectors in society and in increasing accountability and transparency [1] . Protection of journalistic sources is one of the basic conditions of press freedom (see Goodwin v. the United Kingdom , 27 March 1996, § 39, Reports of Judgments and Decisions 1996-II) and a key aspect of journalistic work. Without such protection, sources may be deterred from assisting the press in informing the public on matters of public interest. As a result, the vital public-watchdog role of the press may be undermined and the ability to provide accurate and reliable information may be adversely affected (see Sanoma Uitgevers B.V. v. the Netherlands [GC], no. 38224/03, § 89, 14 September 2010). In the light of the above, limitations on the confidentiality of journalistic sources call for the most careful scrutiny by the Court. Interference cannot be compatible with Article 10 of the Convention unless it is justified by an overriding interest of democratic society in securing a free press (see Roemen and Schmit v. Luxembourg , no. 51772/99, § 46, ECHR 2003 ‑ IV, and Goodwin , cited above, §§ 39-40, 45).

The applicant, as a journalist, was not requested to reveal the identity of an anonymous source. Nonetheless, the possible effects of the order of the Oslo City Court were of such a nature that, according to the Court, the general principles developed with respect to orders of source disclosure are applicable to the case (see paragraph 72) (in this respect see also the statement of the minority of the Supreme Court of Norway arguing that “should the applicant be ordered to testify concerning her possible contact with Mr X ... she would have to confirm or deny that Mr X was the source for her article .... By making a statement on this matter, she might also inadvertently reveal other potential sources”, paragraph 27). The journalistic methods employed by the applicant have not been questioned (paragraph 71) and there have been no criminal proceedings against her. Moreover, requirement for source disclosure was not intended to prevent any harmful activities (paragraph 77), nor it was necessary for the purposes of investigation, conviction or fair trial guarantees (paragraphs 77-81) and overall, there was no public interest in compelling the applicant to testify about her contact with Mr X (paragraph 83). The judgment also rightly acknowledges that X’s identity cannot be decisive for the proportionality assessment (paragraph 75) as, according to the case-law, the fact that the source’s identity is known does not remove a journalist’s protection under Article 10 of the Convention (see Nagla v. Latvia , no. 73469/10, § 95, 16 July 2013).

The Supreme Court concluded that it seemed likely that the applicant’s statement might significantly assist in elucidating the further circumstances surrounding Mr X’s contact with her (paragraph 26). The applicable test in this regard is to assess whether the public interest invoked by the investigating or prosecuting authorities outweighs the general public interest of source protection and whether a less intrusive measure could suffice to serve the overriding public interests (see Sanoma Uitgevers B.V. , cited above, §§ 91-92). The necessity of the disclosure order does not stem from the circumstances of the case. Moreover, the offences for which Mr X was indicted (paragraph 6) do not correspond to those with regard to which the issuance of a disclosure order could be justified according to the Council of Europe recommendations [2] . All the above totally excludes any justification for the possibility of affording lesser protection to the applicant.

Against this backdrop, I find it difficult to comprehend the rationale behind the suggested dichotomy of degree of protection in relation to journalists under Article 10 of the Convention who have been assisted by persons unknown and whose source came forward during the investigation. Such an argument neither derives from the case-law nor is called for by the circumstances of the case.

The relevant case-law used to support the disputed statement in paragraph 76 is Nordisk Film & TV A/S v. Denmark (dec.), no. 40485/02, ECHR 2005 ‑ XIII, and Stichting Osade Blade (dec.), no. 8406/06, § 64, 27 May 2014. The first case concerned an order to disclose material gathered by undercover activities of a journalist making a documentary on paedophilia in Denmark. The Court concluded that as a result of the journalist’s undercover method of gathering such information, individuals were unaware that they were being recorded. Consequently, they could not be regarded as “sources of journalistic information in the traditional sense”. The applicant company was requested to hand over only part of its research material. In this respect, the identity of the journalistic sources in the traditional sense was adequately protected. The handing over of the research material in relation to an alleged perpetrator was not deemed disproportionate to the legitimate aim pursued and the reasons given by the national authorities were considered to be relevant and sufficient.

Stichting Osade Blade (cited above) concerned the search of a magazine’s premises following a press release it issued announcing that it had received a letter from an organisation claiming responsibility for a series of bomb attacks. As established by the Court, the magazine’s informant’s purpose was to don the veil of anonymity with a view to evading his own criminal accountability. It was further noted that the original document received by the editorial board of the magazine was sought as a possible lead towards identifying a person or persons unknown who were suspected of having carried out several bomb attacks. Importantly, the Court held that the author of the letter was not a “journalistic source”, stating that not “every individual who is used by a journalist for information is a ‘source’” and therefore was not entitled to the same protection as that ordinarily accorded to “sources”.

A brief overview of these two cases shows that the basis for the Court’s conclusion in affording a lesser level of protection to certain journalists under Article 10 significantly differs from the facts of the given case. It is not the aim of this opinion to challenge that standard as such. Rather the question is whether the concrete situation calls for using a standard that allows lesser protection to journalists’ rights under Article 10. While the Court arrived at the right outcome in the present case, its approach, affording an unjustified wide margin of appreciation to States, may eventually lead to a finding of no violation in similar circumstances – a daunting prospect. The uncertainties derived from paragraph 76 are further exacerbated by the concluding statement in paragraph 83 that “ even bearing in mind the appropriate level of protection applicable to the particular circumstances of the case ..., [the Court] is not convinced that the impugned order was justified by an ‘overriding requirement in the public interest’ ... or, therefore, necessary in a democratic society” (emphasis added).

Applying Convention principles developed under other circumstances, without explanation or context, does no good either to the consistency of the case-law or in general, the protection of freedom of expression. This is particularly troubling in the framework of the present case, which concerns a novel issue for the Court – the situation where the source identifies himself/herself and cooperates with the authorities. It should be recalled that the right of journalists not to disclose their sources is not “a mere privilege to be granted or taken away ..., but is part and parcel of the right to information, to be treated with the utmost caution” (see Tillack v. Belgium , no. 20477/05, § 65, 27 November 2007). The Court has previously found that Article 10 does not only protect anonymous sources assisting the press in informing the public about matters of public interest (see Nordisk Film & TV A/S , cited above). A journalist’s protection under Article 10 cannot automatically be removed or diminished by virtue of the source’s own conduct. In this regard, while on the one hand the judgment, in paragraph 74, concludes (and rightly so!) that all previously developed standards for source protection are also relevant in a situation where a source comes forward, on the other hand, two paragraphs below, this very standard is unjustifiably called into question. Nor am I convinced by the statement that “it may be true that the public perception of the principle of non-disclosure of sources would suffer no real damage in this situation” (paragraph 82).

The unanimous conclusion as to a violation of Article 10 is commendable indeed. Nonetheless, we are living in the modern digital era where the legal framework of the protection of journalistic sources is under significant strain. This expands the risk of erosion, restriction and compromise in the work of journalists, with an impact on freedom of expression, the media and investigative journalism in particular [3] . The Court has been a frontrunner and an advocate of judicial protection of journalists and their sources and in so doing it has also served as an inspiration for many other jurisdictions [4] . This path should not be reversed.

[1] The protection of journalists’ sources, Recommendation 1950 (2011), Council of Europe Parliamentary Assembly – Assembly debate on 25 January 2011 (4th Sitting) (see Doc. 12443, report of the Committee on Culture, Science and Education, rapporteur: Mr Johansson). Text adopted by the Assembly on 25 January 2011 (4th Sitting), paragraph 1. Available at: http://assembly.coe.int/nw/xml/XRef/Xref-XML2HTML-EN.asp?fileid=17943&lang=en .

[2] In this respect, see the Explanatory Memorandum to Recommendation No. R (00) 7 of the Committee of Ministers to member states on the right of journalists not to disclose their sources of information (Adopted by the Committee of Ministers on 8 March 2000 at the 701st meeting of the Ministers' Deputies), in particular, §§ 38-40, available at: https://rm.coe.int/16805e2c13.

[3] See generally, Protecting Journalism Sources in the Digital Age , UNESCO publication 2017

http://en.unesco.org/news/unesco-releases-new-publication-protecting-journalism-sources-digital-age

[4] See, for example, Burundi Journalists Union v. Attorney General of the Republic of Burundi , EACJ, Judgment of 15 May 2015, §§ 107–111, and Prosecutor v. Radoslav Brdjanin and Momir Talic (IT-99-36-AR73.9), ICTY, AC, Decision on Interlocutory Appeal, 11 December 2002. Importantly, this latter decision, which concerns war correspondents reporting from conflict zones, states that: “in order to do their jobs effectively, war correspondents must be perceived as independent observers rather than as potential witnesses for the Prosecution… Problems remain … even if the testimony of war correspondents does not relate to confidential sources” (§ 42). The decision further notes that: “the legal differences between confidential sources and other forms of evidence are likely to be lost on the average person in a war zone who must decide whether to trust a war correspondent with information. To publish the information obtained from an interviewee is one thing -- it is often the very purpose for which the interviewee gave the interview -- but to testify against the interviewed person on the basis of that interview is quite another” (§ 43). While the context of this case is different, the applicable principles should still be the same.