ECHR judgment of 05 October 2017 in the case of Becker v. Norway (application No. 21272/12).
In 2012, the applicant was assisted in the preparation of the application. Subsequently, the application was communicated to Norway.
In the case, the complaint on the obligation of a journalist in the criminal proceedings to give evidence that allows him to identify his journalistic sources was successfully considered. The case involved a violation of the requirements of Article 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms.
CIRCUMSTANCES OF THE CASE
In August 2007, the applicant, who was a journalist, wrote an article about a company whose securities were quoted on the exchange, on the basis of a telephone conversation with X and a letter drawn up by counsel.
In June 2010, X was charged with manipulating the market and insider trading. He was accused of offering a lawyer to write a letter that created the impression that it was written on behalf of a number of interested bondholders concerned with liquidity, finances and the company's future, although in reality it was written exclusively on behalf of X, to which the only bond belonged, acquired in the recent past. After the publication of the applicant's article, the value of the company's securities fell.
The applicant was subsequently interrogated by the police, who informed her that X had confessed to having given her a letter. The applicant stated that she wished to testify that she had received the letter, but refused to provide additional information with reference to the protection of journalistic sources.
In the criminal proceedings against X, the applicant was summoned as a witness. Referring to the country's legislation and to Article 10 of the Convention, she refused to testify. The court of first instance ruled that the applicant was obliged to testify about her contacts with X in connection with the letter of counsel. In 2011, the Supreme Court rejected the applicant's complaint, finding that there was no violation of the Convention if the source became known, and therefore there was no source requiring protection. The main motive for protecting sources was based on the consequences that disclosure of the source could have had on the free distribution of information. The applicant was fined 3,700 euros for a crime against the proper administration of justice.
At the Court, the applicant claimed that she was required to give evidence to identify her journalistic sources, in violation of her right under article 10 of the Convention to receive and impart information.
ISSUES OF LAW
Concerning compliance with Article 10 of the Convention. The case concerned the question of whether the interference with the applicant's rights was necessary in a democratic society. In this connection, the Court refers to the principles governing the protection of journalistic sources, developed in numerous judgments (Goodwin v. The United Kingdom, judgment of 27 March 1996, no. 17488 / 90, the Grand Chamber of the European Court in the Sanoma Uitgevers BV v. The Netherlands case of 14 September 2010, application no. 38224/03 // Bulletin of the European Court of Human Rights 2011. N 3 (editor's note), Resolution of the Euro The Financial Times Ltd and Others v. the United Kingdom, judgment of 15 December 2009, complaint No. 821/03 // See: Bulletin of the European Court of Human Rights of the person 2010. N 5). The Court has not previously had occasion to consider a specific issue arising in the present case. However, his case-law indicated that the protection of journalists under article 10 of the Convention can not be automatically eliminated because of the source's own behavior.
In assessing whether the interference was necessary, the Court must consider whether there were relevant and sufficient reasons for the applicant's obligation to testify. The circumstances surrounding the personality of X were only one element in this assessment. Agreeing with the Supreme Court that the fact that the source was known could have mitigated some of the concerns associated with measures involving the disclosure of the source, the knowledge of the X person could not have been decisive in assessing proportionality.
The protection that journalists enjoy when it comes to their right to keep their sources secret is a dual one, since it applies not only to the journalist, but especially to the source who volunteered to help the press inform the public about issues of general interest . Accordingly, the circumstances relating both to the motivation of X to present herself as a "source" to the applicant and to give evidence in the course of the investigation suggested that the degree of protection in accordance with Article 10 of the Convention to be applied in the present case could not be achieved The same level that is given to journalists assisted by persons whose identity is unknown. The fact that X was accused of using the applicant as a tool for manipulating the market was important for assessing proportionality. The issue of disclosure of the source of information arose in the present case at a time when there were no issues, for example, preventing additional damage to the company or its shareholders. The harmful purpose of the source, therefore, was of limited importance at the time of the decision to oblige to testify.
The decision on whether the decision rendered in respect of the applicant was necessary mainly depended on the assessment of the need for her testimony in the course of the criminal investigation and the subsequent trial of X. The latter did not claim that a controversial decision against the applicant was necessary for the purpose guaranteeing his rights. Although the gravity of the alleged crimes should be taken into account, the applicant's refusal to disclose her source did not in any way complicate the investigation or prosecution of X. The prosecution authorities charged X without having received any information from the applicant capable of revealing her source. In the domestic courts, nothing prevented them from considering the charges on the merits. After the applicant appealed against a decision obliging her to give evidence, the prosecutor said that he would not ask for the adjournment of the meeting, since the prosecution considered that the case had been properly handled and without the applicant's testimony. Finally, the decisions of the country's courts against X did not indicate that the applicant's refusal to give evidence gave rise to any concern on their part with respect to the case or evidence against X.
The Court has previously stressed that a deterrent effect will arise in all cases where journalists are required to assist in the identification of anonymous sources. In the present case, the decision to disclose was limited to placing on the applicant the obligation to testify about her contact with X, who himself announced that he was the source. Although, perhaps, public perception of the principle of non-disclosure of sources will not cause real damage in this situation, the Court concludes that the circumstances in the present case were not sufficient to oblige the applicant to give evidence. The motives given in favor of the applicant's obligation to give evidence, although relevant, were not sufficient. Thus, even considering the level of protection that was acceptable in the particular circumstances of the case, the Court is not convinced that the controversial decision was justified by the prevailing requirement of universal interest and therefore necessary in a democratic society.
There has been a violation of Article 10 of the Convention (unanimously).
In the application of Article 41 of the Convention. The Court ordered the respondent Government to reimburse the fine paid by the applicant, the claim for compensation for non-pecuniary damage was not raised.