Absence of Reasonable Alternative Measures, Outweighing Legitimate
Interest (Protection of Human Life, Prevention of Major Crime,
Defence of a Person Accused or Convicted of Having Committed a
Major Crime). Under which Criteria Can the Interest in the Disclosure
Outweigh the Interest in the Non-Disclosure?
Council of Europe
Recommendation 7 of the Committee of Ministers on the right of journalists not to disclose their sources of information contains three relevant principles: principles 3, 5 and 6. Principle 3 describes certain limits to the right of non-disclosure, which have been discussed above in question in title 6.
Principle 4 concerns Alternative evidence to journalists' sources. It stipulates that 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. So in these kinds of procedures the right of non-disclosure is not overruled by an overriding interest to restore the honour or reputation of a person.
Finally, principle 5 establishes certain conditions for cases in which a disclosure can be justified based on an overriding interest. The first condition states that the request to disclose journalistic sources can only be made by persons or public authorities which have a direct legitimate interest in the disclosure. Secondly, journalists should be informed about their right not to disclose the
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source as well as the limits of this right. They should be informed before the disclosure is requested. The third condition stipulates that sanctions against journalists for not disclosing their source can only be imposed by judicial authorities. This should happen during proceedings which allow for a hearing of the journalist in question in accordance with the procedural safeguards of article 6 of the European Convention on Human Rights. Fourthly, this sanction for non-disclosure after a valid request should be subject to review by another judicial authority. Lastly, if journalists disclose information which can reveal their source the competent authorities should limit the extent of the disclosure as far as possible; for example by excluding the public from the disclosure and by themselves respecting the confidentiality of the disclosure.
As such, the Recommendation does not list any specific overriding interest which can justify an exception to the principle of non-disclosure of information which can reveal the source. Instead, the Recommendation includes a series of checks and criteria which must be taken into account by the competent authorities when assessing the legitimate interest.
A Member State’s law should specify the conditions in which a disclosure can be justified. This is in line with the case law of the ECHR, which stresses that limitations to Article 10 must be "prescribed by law". The Court has held that "relevant national law must be formulated with a sufficient precision to enable the persons concerned - if need be with appropriate legal advice - to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail", and be formulated with sufficient clarity to provide the individual "adequate protection against arbitrary interference" by public authorities through an unlimited discretion.41
Belgian law
As mentioned above, article 4 of the Act states that the right of non-disclosure of a journalist or editorial staff member can be limited under certain conditions.42 A judicial authority may request
the revelation of the source of information if that information is likely to prevent certain crimes that pose a serious threat for the physical integrity of one or more persons, which also includes the offences referred to in article 137 of the Belgian Criminal Code that concern crimes of terrorism. The information must only be disclosed if the crime poses a risk for the physical integrity, and to the extent that following cumulative conditions are met: (1) the information is crucial for the prevention of these crimes; (2) and the information cannot be obtained by any other means. Until now this is in line with the Recommendation, even though the field of application is more restrictive than the one envisaged by the Council of Europe.
A judge can only obligate the journalist to disclose the information in certain circumstances. Foremost, the disclosure can only be ordered for the prevention of a crime.43 In other words, a
judge cannot order the disclosure of information if the crime is already committed (for example
41 ECHR, Goodwin v. the United Kingdom, 27 March 1996, para. 31
42 Article 4 of the Belgian Protection of Journalistic Sources Act of 7 April 2005.
43 K. Lemmens, “Wovon Man Nicht Reden Kann, Darüber Muss Man Schweigen”. Het Journalistieke Zwijgrecht Wettelijk
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after a terrorist attack) or during a criminal offence (for example during a hostage taking). Only a criminal judge, the investigating judge or the trial judge, can order the disclosure of sources. Next, the crime must pose a serious threat for the physical integrity of one or more persons. The Act is restrictive since there are no other exceptions foreseen. Article 10 ECHR states, for example, freedom of expression can also be restricted for the protection of other persons. Furthermore the Recommendation hints to make an exception for the defence of a person accused or convicted of having committed a major crime. The Act however only mentions the exception of “a serious threat for the physical integrity” and no other exceptions. Furthermore, the Act includes all the crimes of terrorism mentioned in article 137 of the Belgian Criminal Code as crimes that pose a serious threat for the physical integrity. The article does not clarify any other crimes that can be seen as a serious threat for physical integrity and it does not define ‘serious threat for physical integrity’. 44 This decision is up to the judge.
Additionally, the Act provides conditions with regard to the subsidiarity principle.45 Article 4
states that it must be imperative that the information is of crucial importance for the prevention of the crime, unless there are other reasonable alternative measures to obtain the information. The Act also provides a proportionality condition, when it states that the information must be crucial to prevent the crime.46 Finally, the a priori judicial review of the exception to the right of
non-disclosure is in line with the case-law of the ECHR, which envisages an effective protection of the right of non-disclosure of journalistic sources.47 Even though the Recommendation does
not foresee an exception in cases concerning the infringement of the honour or reputation of a person, a journalist cannot be protected by the right of non-disclosure. A journalist has the choice between revealing its sources, so he will not be liable for unlawful or defamatory journalism, or protect its sources and risk to be held personally liable.48 Another important
exception to the right of non-disclosure is the following. Pictures and videos of for example riots, demonstrations or other acts of violence do not fall under the protection afforded by the Act, because they do not fall under the definition of a journalistic source. Police and security services can demand footage of to identify suspects and gather evidence. If, however, the images can reveal the identity of informants or the origin of documents, the Act is applicable again.49