with regard to the right of journalists not to disclose information?
According to the Recommendation No. R (2000) 7 of the Council of Europe, in order ‘to achieve greater unity between its members for the purpose of safeguarding and realising the ideals and principles which are their common heritage’, certain principles concerning the right of journalists not to disclose their sources of information should be followed. Whether Austrian national legislation is in line with the principles of the Recommendation No. R (2000) 7 in regard to the limits of the right of non-disclosure shall be discussed in the following.
As already mentioned, the protection of journalistic sources is guaranteed by law, in particular by § 31 MedienG 1981 and § 157 Abs 1 Z4 StPO 1975. According to the ECtHR,53 the protection
of journalistic sources is one of the aspects of the freedom of expression. This was confirmed in the 2010 judgement of the OGH discussed above.54 The right of journalists not to disclose
information identifying a source thus falls within the scope of Article 10.
However, the right to freedom of expression is not unlimited. ‘Restrictions on restrictions’ on this fundamental right are stated in Article 10, paragraph 2, ECHR. According to this Article, limits to freedom of expression have to be
prescribed by law and ... necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.
Thus, there are three conditions set out in Article 10, paragraph 2, ECHR and re-affirmed by the ECtHR which have to be met in order to justify restrictions on the freedom of expression. First,
prescription by law is required; limits to the freedom of expression must be expressly provided
for in law. This is of great importance in preventing public authorities from arbitrarily interfering with the exercise of fundamental rights. Moreover, a number of goals agreeing with legitimate
public interest in restrictions of this right are mentioned in the paragraph. In addition to this, in
order to be permissible, any interference or restriction must be necessary in a democratic
society and pursue the goals defined as legitimate.55 Article 10 applies for any interference with
the right of non-disclosure of journalistic sources and all three conditions have to be met cumulatively.56 The right must not be subject to restrictions other than those stated expressly.
53 Goodwin v United Kingdom App no 17488/90 (ECtHR, 27 March 1996). 54 13 Os 130/10g (OGH, 16 December 2010).
55 The Sunday Times v United Kingdom App no 6538/74 (ECtHR, 26 April 1979).
56 Michael Holoubek, Klaus Kassai and Matthias Traimer, Grundzüge des Rechts der Massenmedien (4th edn, Springer
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In contrast to the first and second conditions, the meaning of the third condition, namely, the interference being necessary in a democratic society, requires further explanation. Whether an interference is necessary in a democratic society, is a question of proportionality.57 Any
interference disproportionate to the legitimate aim pursued will not be deemed ‘necessary in a democratic society’ and will thus violate Article 10. According to the case-law of the ECtHR, considering ‘the importance of the protection of journalistic sources for press freedom in a democratic society and the potentially chilling effect an order of source disclosure has on the exercise of that freedom’, restricting measures can only be compatible with Article 10, ECHR when ‘justified by an overriding requirement in the public interest’.58
These considerations need to be taken into account when determining whether public interest in disclosure as mentioned in Article 10 outweighs the interest in protecting journalistic sources. Following the view of the ECtHR stated in its judgements, the Austrian Verfassungsgerichtshof (Constitutional Court, “VfGH”) held that an interference with the freedom of expression will be deemed compatible with the constitution only if the interference is prescribed by law, pursues at least one of the legitimate aims mentioned in paragraph 2 of Article 10 and is necessary in a democratic society.59 In order to assess the necessity of the measure in a democratic society, the
VfGH developed a “principle of proportionality” (Grundsatz der Verhältnismäßigkeit) which serves to determine the appropriate means-end relationship between the legitimate aim pursued and the interference with the fundamental right.60 In Austria, the test of the principle of proportionality
is applied to every interference with fundamental rights which are not guaranteed unlimitedly. In order to be considered proportional, an interference needs to meet the following criteria:
The measures used to pursue the legitimate public goals have to be suitable to actually achieve these goals. Secondly, the measures need to be necessary; this means that the measure applied has to be the least severe measure necessary to achieve the goal. The authorities have to first look into and, if possible, apply alternative measures, which adequately protect their respective rights and interests, and at the same time are less intrusive with regard to the right of journalists not to disclose information. Personal liberty may not be subject to any further restrictions than those which are necessary to secure legitimate public interest. Eventually, restrictions of the exercise of fundamental rights are only in line with the constitution when justified by an overriding requirement in the public interest. For that reason, the assessment of overruling interests is based on a proportionality test in order to determine whether public interests outweigh the protection of personal freedom.61
It is primarily the legislator who has to ensure that a law which interferes with fundamental rights meets all these criteria. If the law has a margin of appreciation, the executive authorities too are
57 ibid 43.
58 Goodwin v United Kingdom App no 17488/90 (ECtHR, 27 March 1996) 59 B847/87 (VfGH 3 March 1989).
60 Walter Berka, Lehrbuch Grundrechte (Springer Wien New York 2000) 60 [German]. 61 ibid 60.
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obliged to take notice of the principle of proportionality when implementing the law.62 The
reasonability of the authorities’ actions, especially the balancing of competing interests, is supervised by the ECtHR.63
Since the protection of journalistic sources is one of the aspects of the freedom of expression,64
the curb placed on interferences with this right also applies to the right of journalists not to disclose information identifying a source. However, as noted above, in § 31 MedienG 1981 and § 157 Abs 1 Z4 StPO 1975, the Austrian legislative has gone even further in protecting journalistic sources: the balancing of interests, as prescribed by art 10 ECHR, is not required.65 Thus, an
order to disclose journalistic sources falling under these provision will always be deemed to infringe on the right to freedom of expression. This applies irrespective of whether the sources, if disclosed, would be likely to provide important information about serious crimes.66 The OGH
affirmed that this goes far beyond the average European-level of protection.67 However, the right
of journalists not to disclose their sources only applies when they act as witnesses68. In other
cases, an interference has to pass the proportionality test in order to comply with the case-law of both the ECtHR and the VfGH. According to § 5 StPO 1975, it is necessary to balance the interests where the actions of criminal investigation do not fall within the protections of sources. This provision makes it possible for criminal execution authorities to act in line with the constitution.
The principles concerning the limits to the right of non-disclosure mentioned in the Recommendation No R (2000) 7 refer to Article 10, paragraph 2, ECHR. The Committee of Ministers effectively sums up the ECtHR case-law on the importance of the right of non- disclosure which needs to be taken into account when balancing interests. As the principle of proportionality developed by the VfGH requires the absence of reasonable alternative measures and a compelling legitimate interest, it complies with Principle 3 of the Recommendation No R (2000) 7. In fact, the provisions of § 31 MedienG 1981 and § 157 Abs 1 Z4 StPO 1975 offer protective instruments which go beyond the goals set in the Recommendation.
6. In the Recommendation No R (2000) 7 the following principles
should be respected when the necessity of disclosure is stated: absence
of reasonable alternative measures, outweighing legitimate interest
(protection of human life, prevention of major crime, defence of a
62 ibid 127.
63 ibid 127.
64 Michael Holoubek, Klaus Kassai and Matthias Traimer, Grundzüge des Rechts der Massenmedien (4th edn, Springer
Wien New York 2010) 46 [German].
65 Fritz Zeder, ’Hype um das Redaktionsgeheimnis’ [2011] Österreichische Juristen-Zeitung 6 [German]. 66 Susanne Reindl-Krauskopf, ’Meinungsäußerungsfreiheit und Redaktionsgeheimnis’ [2011] Juristische Blätter 667
[German].
67 13 Os 130/10g (OGH, 16 December 2010). 68 For a more detailed discussion see Question 1.
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