DISSENTING OPINION OF JUDGE POWER JOINED BY JUDGES GYULUMYAN AND ZIEMELE

The protection and confidentiality of journalistic sources is one of the cornerstones of freedom of the press and is thus protected by Article 10. In view of the potentially “chilling effect” which an order for non-voluntary disclosure has on the exercise of that freedom, such a measure cannot be compatible with Article 10 of the Convention unless it is justified by an overriding requirement in the public interest. [1] To be so justified, S tate interference with press freedom and the confidentiality of its sources must be strictly “necessary”, implying the existence of a “ pressing social need ” . [2] Any restriction thereon calls for “the most careful scrutiny” of the Court. [3]

This Court has never disputed that a compulsory handover of journalistic research material may have as chilling an effect upon the exercise of journalistic freedom of expression as may an order for source disclosure and it considers that this matter can only be addressed, properly, in the circumstances of a given case. [4] The facts of the instant case stand in marked contrast to the facts in Nordis k Film and TV A/S v Denmark in which the Court found that the applicant ’ s complaint was manifestly ill-founded. In Nordisk, a request for disclosure of journalistic materials made by the Danish police in the context of an investigation into sexual assaults upon children was heard before the Copenhagen City Court, the High Court and the Supreme Court. Following a detailed consideration of the competing public interests in issue the Court ordered the handover of a limited number of the materials requested but exempted from its order any recordings or notes that would entail a risk of revealing the ident ity of the applicant ’ s sources.

By contrast, the police in this case, without any prior judicial assessment or authorisation, arrived at one of the applicant ’ s editorial offices, ordered the editors to surrender all photographic and other materials required for an investigation, declined to give details as to the necessity of the demand, refused to entertain any objection based on journalistic undertakings of confidentiality, threatened, a rrested and detained the editor-in- chief and further threatened to close and search all of the applicant company ’ s premises for an entire weekend ( paragraphs 10-13). What occurred in this case, in my opinion, is not far removed from (and in certain respects goes beyond) the type of “drastic measure” previously criticised by this Court in finding a violation of Article 10 of the Convention. [5] The absence of any statutory requirement for prior judicial involvement in a case such as this, is, in my view, somewhat more than “disquieting” (as the majority considers) and the actions of the police are a great deal more th an “regrettable” ( paragraphs 62 - 63).

The distinction between a journalist ’ s “sources” and his or her “materials” (such as, notes, recordings, photographs) forms part of the rationale relied upon by the majority in its finding of no violation in this case (see paragraphs 57 - 61). To my mind, great caution should be exercised before the law draws too sharp a distinction between such matters. The purpose of the legal protection of sources is founded upon an important point of principle. This protection is granted to ensure that those who (for reasons of fear or otherwise) disclose, secretly, to journalists matters that are of public interest are not discouraged from so doing by the risk that th eir identities may be revealed. If legal protection is to be limited, strictly, to non-disclosure of “sources” then such sources may suddenly “shut up”, fearful that their identities will be ascertainable once the journalist to whom confidential data has been given is no longer its sole custodian. Such a risk of indirect disclosure is likely to discourage an otherwise courageous “source” from bringing matters of vital interest into the public domain. In my view, it is not of pivotal significance that the intention behind a given interference is to identify evidence rather than individuals. It is the fact of interference (with its attendant risk of source identification) that undermines and weakens the worth of a journalist ’ s undertaking. Thus, this Court imposes a high threshold of “necessity” before finding that such interference can be compatible with Article 10.

The public interest in maintaining confidentiality of press sources is constant. Without confidential sources, journalists would be fettered in the discharge of their important function as ‘ public watchdog ’ . Disclosure is always contrary to the public interest and the question for consideration in any given case is whether there is an overriding alternative public interest, amounting to a “pressing social need”, to which the need to keep press sources confidential should yield. To establish that a “pressing social need” exists, sufficient reasons for the otherwise unlawful interference must be shown. The respondent State, to my mind, has failed, entirely, to show that the police would not have been able to identify the vehicle in any other way. No evidence has been adduced to indicate that even one alter native effort was made (such as a search of motor taxation records or ongoing surveillance of suspects or questioning on suspicion of involvement) in order to obtain the evidence they required. It would appear that once the police had lost the car chase earlier in the day, their first port of call was to the applicant company ’ s offices with their “immoderate” demand for the surrender of photographic and other materials. Because of the importance of the principle at stake, the journalist should be the last, rather than the first, means of arriving at evidence required.

Where, in the public interest, a pressing social need to interfere with journalistic confidentiality is asserted then the determination of whether relevant and sufficient reasons have been adduced to substantiate that claim should be made by a competent court having “heard” the competing public interest. Otherwise, the police become judges in their own cause and a fundamental right protected under Article 10 of the Convention is thereby undermined to the detriment of democracy.

It is telling to note that the police authorities in this case operated under Guidelines that had been issued in May 1988. [6] Their provisions on the seizure of journalistic material might best be described as draconian [7] (“ The police may, on the instructions of a public prosecutor ... or not as the case may be, arrest a journalist on suspicion of a criminal act and seize everything he has with him on the spot.” ) . With effect from 1 April 2002, some two months after the events in this case, those provisions were replaced by a new Directive on coercive measures by the police in respect of journalists. [8] This Directive contained extensive reference to this Court ’ s case law [9] and provided, inter alia, that where “the protection of a journalist ’ s source is at issue, the use of coercive measures must be in accordance with Article 10 § 2”. [10] These facts confirm me in my view that the actions of the police in this case were in violation of Article 10 of the Convention.

In finding no violation, the majority merely wags a judicial finger in the direction of the Netherlands authorities but sends out a dangerous signal to police forces throughout Europe , some of whose members may, at times, be tempted to display a similar “regrettable lack of moderation”. To my mind the judgment will render it almost impossible for journalists to rest secure in the knowledge that, as a matter of general legal principle, their confidential sources and the materials obtained thereby are protected at law.

[1] Goodwin v. the United Kingdom , 27 March 1996, § 39, Reports of Judgments and Decisions 1996 ‑ II .

[2] Lingens v. Austria , 8 July 1986, §§ 39-40, Series A no. 103; Sunday Times v. the United Kingdom (no. 2) , 26 November 1991, § 50, Series A no. 217 .

[3] Roemen and Schmit v. Luxembourg , no. 51772/99, § 46, ECHR 2003 ‑ IV; Goodwin , cited above , §§ 39-49 .

[4] Nordisk Film & TV A/S v. Denmark (dec.), no. 40485/02, ECHR 2005 ‑ XIII.

[5] Roemen and Schmit , cited above , § 57.

[6] These Guidelines are cited and the relevant provisions thereof are set out in § 40 of the Court’s judgment in Voskuil v. the Netherlands , no. 64752/01 , 22 November 2007.

[7] Section 7 of the 1988 Guidelines sets out provisions on the seizure of journalistic material and is cited in Voskuil , cited above , § 40.

[8] On 1 April 2002 t he Directive on the Application of Coercive Measures to Journalists came into force; see Voskuil , cited above, § 41 .

[9] ibid .

[10] i bid .