Safeguards Combined with Self-Regulatory Mechanisms?
In Belgian domestic law there are several legal safeguards for the protection of journalistic sources. These safeguards can be found in the Constitution, in the Act on the protection of journalistic sources, in the Act on the regulation of the Intelligence and Security Service and in journalistic ethical codes.
5.1. What Are the Legal Safeguards for the Protection of Journalistic Sources?
How Are the Laws Implemented?
The first source of legal safeguards to be discussed, is the Belgian Constitution. The universal right of freedom of expression for every individual is enshrined in article 19, while article 25 offers an express protection for journalists, as well as safeguards for the freedom of press. These two articles can be considered as the general sources of the protection of journalistic sources in Belgium.21
A more specific source of law is the Act on the protection of journalistic sources of 7 April 2005. The Act introduces that all beneficiaries of the Act have the right not to disclose their sources. The answer to the question in title 2.3 explains the scope of the journalistic protection and clarifies which persons are favoured by the Act. As mentioned above, the beneficiaries of the Act are protected against a prosecution for the crime of fencing (article 6) or as an accessory to crimes (article 7).22 This is an important legal safeguard because such situations sometimes
occurred in the past. The cases of Jespers (1977) and Coenen (1985) are examples of journalists arrested for fencing and complicity because they did not want to disclose their sources.23
Under 1.3., it was also pointed out that the right of non-disclosure can be limited under certain conditions stemming from article 4. As explained, the beneficiaries of the Act can only be forced to disclose information to prevent the commission of a crime posing a serious threat to the physical integrity of persons on the basis of a court order. As the criterion of ‘serious threat’ is not defined in the Act, it needs to be interpreted by the competent courts. It goes without saying
21 Piet Martens, Mediarecht voor journalisten, (Garant, 2005) 17 [Dutch]; Stéphane Hoebeke and Bernard Mouffe, Le
droit de la presse (2nd edn, Academia Bruylant, 2005) 54 [French]; Peggy Valcke and Eva Lievens, Media Law in Belgium, (Kluwer Law International, 2011) 51-53; Dirk Voorhoof and Peggy Valcke, Handboek mediarecht, (4th edn,
Larcier, 2015) 27 [Dutch].
22 Question 1.3
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that the interpretation of judges will be an important factor for the protection of sources. Considering that when the judge applies a restrictive interpretation of ‘serious threat’ the secrecy of sources will logically be protected in a stronger way. 24
Likewise, it was pointed out that such an exception is only applicable if (i) the information is necessary to prevent crimes and; (ii) the information cannot be obtained in another way. On the basis of the same conditions it is also possible to take investigative measures against journalists (article 5). It follows that exceptions are not applicable if the crimes are already taking place or if they are/have already been completed. The competent authorities thus need to prove that it enables them to prevent a potential future crime.
Article 10 of the ECHR contains a similar exception, as paragraph 2 states that the freedom of expression may be limited by pursuing the legitimate aim of preventing criminality, on the condition that the exception is provided by law and is necessary in a democratic society.25 Also,
the possibility of making an exception to the secrecy of journalistic sources on the basis of article 10, para 2 in case of a serious ongoing crime, has been recognised in the legal doctrine. Such an exception, however, is not possible on the basis of the Belgian Act.26
A weakness of the Act is the lack of a sanction in case of a violation of the provisions. Nevertheless there are some examples of journalists who claimed damages after the rights granted to them on the basis of the Act were violated. They effectively received compensation.27
Remarkably, at the moment of the facts the Act was not applicable yet.28
Since 2010, the Act on the regulation of the Intelligence and Security Service of 30 November 1998 (hereafter ‘ISS Act’) also deals with the secrecy of journalistic sources. This ISS Act will be discussed more at length in question in title 8, but a few principles will be mentioned here. The ISS Act ensures that special methods of investigation are adapted to guarantee the secrecy of journalistic sources. On the basis of article 2 (2) of the Act, the Intelligence and Security Service is not allowed to obtain, analyse or exploit data protection under the principle of secrecy of journalistic sources, unless there is a serious indication that the journalist personally or actively participates or participated in the development of a potential threat. The several possible kinds of threats are listed in the Act. Moreover, the exceptional methods need to be necessary.29
24 Dirk Voorhoof, Het journalistiek bronnengeheim onthuld, (die Keure, 2008) 32-34 [Dutch]; Dirk Voorhoof and Peggy
Valcke, Handboek mediarecht, (4th edn, Larcier, 2015) 335-336 [Dutch]. 25 Secic v Croatia [2007] European Court of Human Rights.
26 Dirk Voorhoof, Het journalistiek bronnengeheim onthuld, (die Keure, 2008) 32-33 [Dutch]; Tessa Gombeer, “Recente
rechtspraak van het Europees Mensenrechtenhof inzake artikel 10 EVRM en impact van de journalistieke beroepsethiek” [2009]
Nullum Crimen 79 [Dutch].
27 De Graaf v Belgium [2007] Court of First Instance of Brussels, AM [2007], 500 [Dutch].
28 Dirk Voorhoof, Het journalistiek bronnengeheim onthuld, (die Keure, 2008) 51-52 [Dutch]; Dirk Voorhoof and Peggy
Valcke, Handboek mediarecht, (4th edn, Larcier, 2015) 336-337 [Dutch].
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When the Intelligence and Security Service uses special methods of investigation with regard to journalists, they are obliged to notify the president of AVBB, the General Association of Professional Journalists in Belgium. As a result, the investigations will be carried out under the supervision of a special commission, which is tasked to verify whether there is a direct link between the threat and the obtained data under art 18 (2) of the ISS Act. Also, under article 18 (3) of the ISS Act, the commission has to give an advice on possible “serious indications” of the journalist’s involvement and the necessity to move on to the use of special investigation methods.30
The ISS Act only applies to professional journalists, which does not mean that non-professional journalists do not enjoy any protection of sources. They will be covered by the aforementioned Act on the protection of journalistic sources and article 10 ECHR.31
5.2. How Are the Legal Safeguards Combined with Self-Regulatory Mechanisms
As explained above, journalists are subject to a deontological or ethical code. The International Code of the International Federation of Journalists, the Declaration of Duties and Rights of Journalists are both important international sources of journalistic deontology. Important Belgian sources of journalistic deontology are the Code of journalistic principles and the Code of the Council for Journalism.32
As it is very important for a journalist to have the right to collect data and to publish information and opinions freely, one of the most important deontological duties of the journalist is the protection of secrecy of sources.33
In 2002, the Belgian Council for Journalism was established, which is a self-regulatory body for journalists in the Flemish part of Belgium. It is an independent institution which treats questions and complaints about the professional practice, and consists of six journalists, six representatives of editors, media houses and news agencies, and six external members. Any individual can approach the Council with general questions or complaints. The Secretary General acts as an ‘ombudsman’ and tries to obtain a settlement between the applicant and the journalist.
Deontological rules are taken into account in the rulings of the Council. The Code of the Council for Journalism (hereafter ‘the Code’) is such an instrument. The Code explicitly states
30 Dirk Voorhoof and Peggy Valcke, Handboek mediarecht, (4th edn, Larcier, 2015) 339 [Dutch]. 31 Dirk Voorhoof and Peggy Valcke, Handboek mediarecht, (4th edn, Larcier, 2015) 340 [Dutch].
32 Stéphane Hoebeke and Bernard Mouffe, Le droit de la presse: presse écrite presse audiovisuelle, presse électronique,
(Anthemis, 2012) 841-851 [French]; Eric Brewaeys, Dirk Voorhoof and Filip Voets, Wetboek media en journalistiek, (Kluwer, 2014) 164-165 [Dutch].
33 Piet Martens, Mediarecht voor journalisten, (Garant, 2005) 142 [Dutch]; Stéphane Hoebeke and Bernard Mouffe, Le
droit de la presse: presse écrite presse audiovisuelle, presse électronique, (Anthemis, 2012) 851-853 [French]; Peggy Valcke and
Eva Lievens, Media Law in Belgium, (Kluwer Law International, 2011) 59-60; Dirk Voorhoof and Peggy Valcke,
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that the issue of secrecy of sources will be subject to the self-regulation system,34 with a view to
stimulating the autonomy of journalism.35
In the French Community of Belgium there is the Council of Journalistic Deontology. The Council was established in 2009 and is composed of the same members as the Flemish equivalent. It is engaged with the functions of information, mediation and regulation.36
Everybody has the possibility to file a complaint.37 The Council of Journalistic Deontology also
has its own Code of Journalistic Deontology and a self-regulatory system.38
Article 19 of the Code of the Council for Journalism of the Flemish community provides that a journalist protects the identity of its sources to whom he has promised confidentiality, and sources of whom he knew or should have known that they gave to him the information while expecting that he would not reveal their identity. The same provision can be found in article 21 of the Code of Journalistic Deontology of the French Community. On the basis of principle 8 of the Flemish Code of journalistic principles a journalist can only reveal the source if he receives the explicit authorization of the informant.