The police in Amsterdam wanted to obtain photos taken by a journalist of an illegal car race to use for a criminal investigation into another matter. When the editor refused, the police arrested him and threatened to close down the newspaper—without a court order. The case is to be considered by the Grand Chamber of the European Court of Human Rights.
In January 2002 an illegal street race was held in an industrial area on the outskirts of a town close to Amsterdam. Journalists from the weekly news magazine Autoweek were invited to attend the race, and were allowed to take photographs of the street race and of the participating cars and persons on the condition that the identity of the participants would remain undisclosed. Police were present at the race and eventually closed it down, although they did not make any arrests.
In February 2002, shortly before publication of the story, the police contacted Autoweek and asked them to surrender the photographs of the street race, as they believed that one of the participants had been involved in a serious robbery. The editor refused and the police issued a summons from the Amsterdam prosecutor for the surrender of the photographs. When the editor again refused, the prosecutor threatened to detain him and to close the newspaper offices for 48 hours while they searched for the photographs. This would have had significant financial consequences, as the Crown Prince was to be married the next day. The police arrested the editor, then released him when the prosecutor arrived. An investigating judge reached by telephone suggested that the needs of the criminal investigation outweighed the publishing company's journalistic privilege. Under Dutch law, the prosecutor does not need judicial authorization to seize materials even from a media house. The newspaper handed over the CD-ROM with the photographs.
In April 2002 the newspaper filed a complaint to the Regional Court seeking the return of the CD-ROM, an order to the police to destroy copies of the photographs, and an injunction preventing the police from making use of information obtained through the CD-ROM. The Court ordered that the CD-ROM should be returned but concluded that the seizure was lawful because the needs of the criminal investigation outweighed the need for the free gathering of news, particularly as the criminal investigation did not concern the street race itself but a serious offense of robbery. The cassation appeal was rejected in June 2003.
Decision of the Third Section of the European Court of Human Rights
The Third Section of the European Court of Human Rights (ECtHR), by a narrow majority of four votes to three, found that there had been no violation of Article 10. The majority ruled that the interference was for the purpose of preventing crime, and that the local courts were entitled to balance the interests of preventing crime with the need to protect journalists' sources. The crimes in this case were sufficiently serious to justify the interference, particularly as there was no other way to identify the perpetrators. The Court commented that the actions of the police and the public prosecutor had "lacked moderation."
In September 2009, the Grand Chamber of the Court, comprised of 17 judges, agreed to hear the case, a step taken only when a panel of judges decides that either the case raises an especially serious question affecting fundamental rights or the Chamber's decision may be inconsistent with a previous judgment.
The Open Society Justice Initiative submitted a third party intervention to the Grand Chamber together with the Committee to Protect Journalists, Media Legal Defence Initiative, ARTICLE 19, and Guardian News and Media Limited. Thirteen news organizations and publishers' associations supported the brief with a joint statement illustrating the harm to media freedom and investigative journalism that would flow from failure to reverse the Chamber's decision.
The written comments expressed grave concern that the Chamber's decision in this case conflicts with existing law and looked at international standards to identify a number of principles that have evolved in recent years. The standards include the Council of Europe's Committee of Ministers' guidelines on the implementation of the principle of protection of sources, as well as the practice of other international and regional human rights bodies. Additionally, the comments analyzed the relevant law and practice in a range of national jurisdictions.
ECHR standards. In the case of Goodwin v. UK (1996) the Grand Chamber of the ECtHR found that protection of sources is an essential component of media freedom, and the Court has affirmed this decision ever since. The standards set out in Goodwin have become accepted in principle throughout Europe, but are often undermined in practice by government actions.
Scope of the privilege. The protection of sources has broadened to cover situations of search and seizure, compelled testimony and the protection of unused and research materials.
Safeguards. Legislation and case law in Europe and elsewhere in the world have introduced safeguards to prevent arbitrary disclosure of journalists' sources and journalistic materials. These safeguards require that disclosure may only be ordered: (1) after prior review by an independent judicial authority; (2) after the exhaustion of alternative avenues; and (3) with proper weight given to freedom of the press. The intervention submitted that if the Chamber's judgment were allowed to stand, police forces and public prosecutors across Europe could well consider themselves free to exercise a similar lack of moderation. As a result, news media could well become the first—rather than the last—resort when the authorities begin investigations into newsworthy subjects, and that sources could be deterred from disclosing information to the press.
January 12, 2002. Autoweek journalists take photographs of the street race.
February 1, 2002. Police contact Autoweek to demand that the photographs be handed over. The editor is briefly arrested, and then the photographs are handed over.
April 15, 2002. Complaint filed with the Regional Court.
September 19, 2002. The Regional Court returns the photographs but upholds the police action.
June 3, 2003. The Supreme Court declares the appeal inadmissible.
March 31, 2009. Third Section of the European Court of Human Rights finds no violation of freedom of expression.
September 14, 2009. The Grand Chamber agrees to hear the case.
December 2009. Written Comments submitted.
January 6, 2010. The Grand Chamber hears arguments in the case.
September 14, 2010. The Grand Chamber overrules the Chamber in finding a violation of Article 10.
In a final, unanimous judgment, the Grand Chamber of the ECtHR reversed the earlier ruling by the seven-judge chamber, holding that police cannot search media premises or seize journalistic materials unless they can show it is strictly necessary in the investigation of a serious crime and have obtained a judicial warrant. The Grand Chamber found that the Dutch law of the time failed to provide for the procedural guarantees needed to safeguard protection of journalistic sources, including in particular prior judicial review. A judge or other independent authority, the Court held, must be "invested with the power to determine whether a requirement in the public interest overriding the principle of protection of journalistic sources exists prior to the handing over of such material and to prevent unnecessary access to information capable of disclosing the sources' identity if it does not" (§ 90). Observers noted that many European countries may need to change their legislation in order to bring it into compliance with the Sanoma ruling.