Recommendation No R (2000) 7? What Are the Procedures Applied? Is
the Disclosure Limited to Exceptional Circumstances, Taking into
Consideration Vital Public or Individual Interests at Stake? Do the
Authorities First Search for and 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?
6.1. In the Respective National Legislation Are the Limits of Non-Disclosure of
the Information in Line with the Principles of the Recommendation No R (2000)
7?
34 Guidlines article 13 Code van de Raad voor de Journalistiek 20 september 2010.
35 X, Raad voor de Journalistiek <http://www.rvdj.be/node/58> accessed 13 February 2016 [Dutch].
36 X, Un conseil de déontologie, pour le public et pour le medias
<http://www.deontologiejournalistique.be/index.php?presentation> accessed 11 Mars 2016 [French]
37X, Code de déontologie journalistique <http://www.deontologiejournalistique.be/index.php?presentation>
accessed 11 Mars 2016 [French]
38 X, Introduire une plainte <http://www.deontologiejournalistique.be/index.php?presentation> accessed 11 Mars
182
Recommendation No. R (2002) 7 aims to protect the right of non-disclosure of the sources of information of journalists. The recommendation sets up seven basic principles that legislation of Member States need to be in accordance with.
The first principle is the right of non-disclosure of journalists. The second principle contains the right of non-disclosure of other persons. These two principles provide a general protection of journalistic sources, without discussing the limits of non-disclosure.
The possible exceptions to the right of non-disclosure are mentioned in principle 3. This principle sets out the conditions for the exception of an “overriding requirement in the public interest”. A journalist can only be obliged to reveal his source in the following cases:
(a) The right of journalists not to disclose information identifying a source must not be subject to other restrictions than those mentioned in article 10, paragraph 2 of the Convention. In determining whether a legitimate interest in a disclosure falling within the scope of article 10, paragraph 2 of the Convention outweighs the public interest in not disclosing information identifying a source, competent authorities of member states shall pay particular regard to the importance of the right of non-disclosure and the pre-eminence given to it in the case-law of the European Court of Human Rights, and may only order a disclosure if, subject to paragraph b, there exists an overriding requirement in the public interest and if circumstances are of a sufficiently vital and serious nature.
(b) The disclosure of information identifying a source should not be deemed necessary unless it can be convincingly established that:
i. reasonable alternative measures to the disclosure do not exist or have been exhausted by the persons or public authorities that seek the disclosure, and
ii. the legitimate interest in the disclosure clearly outweighs the public interest in the non-disclosure, bearing in mind that: - an overriding requirement of the need for disclosure is proved, - the circumstances are of a sufficiently vital and serious nature, - the necessity of the disclosure is identified as responding to a pressing social need, and - member states enjoy a certain margin of appreciation in assessing this need, but this margin goes hand in hand with the supervision by the European Court of Human Rights.
(c) The above requirements should be applied at all stages of any proceedings where the right of non-disclosure might be invoked.
As mentioned above, in Belgian Law, article 4 of the Act on the Protection of Journalistic Sources states that beneficiaries of the Act can be forced by a court order to disclose relevant information to prevent a serious threat for the physical integrity of persons or crimes in the sense of article 137 of the Belgian Criminal Code. On the basis of article 5 of the Act on the Protection of Journalistic Sources the above exception is only applicable if the information is necessary to prevent crimes and if the information cannot be obtained in another way. This article also states that on the basis of the same conditions it is possible to take investigative measures against journalists.
Prevention of crimes in the sense of article 4 of the Act can be considered as an overriding requirement in the public interest and a legitimate aim in the sense of principle 3 of the Recommendation. Similar to the Recommendation, the Act requires that there are no reasonable alternative measures to the disclosure.
The answer to the questions in title 5 and 9 gives a comprehensive explanation about the ISS Act. However, with regard to the limits to the right of non-disclosure, it might be relevant to
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elaborate on article 2 of the ISS Act. On the basis of this article, it is not allowed to obtain, analyse or exploit data, protected by the secrecy of journalistic sources. Nevertheless, the relevant service put this principle aside if there are serious indications that the journalist personally or actively participates or has participated in the development of a potential threat. The several possible kinds of threats are listed in the Act. Examples are threats to the internal or external security of the state, military security, the democratic and constitutional order, international relations, scientific or economic potential or any other fundamental interest of the country, such as espionage, terrorism, extremism, proliferation or participation to harmful sectarian organisations or criminal organisations. It should be pointed out, however, that his exception is limited by the necessity-requirement.39
A serious threat in the sense of the ISS Act could form an overriding requirement in the public interest and thus a legitimate aim in the sense of principle 3 of the Recommendation, as the above kind of threats are crucial for the general interest and the functioning of a state. Also, the ISS Act requirement of necessity can similarly be found in the Recommendation.
6.2. What Are the Procedures Applied?
The Act provides safeguards against judicial authorities and the police force. The conditions in which there can be an exception to the secrecy of sources are mentioned above. These are no procedural conditions. The ISS Act which covers state security or any other intelligence service, states that the intervention of the Intelligence and Security service requires some procedural requirements. These requirements are discussed in the answer to the question in title 9.
6.3. Is the Disclosure Limited to Exceptional Circumstances, Taking into
Consideration Vital Public or Individual Interests at Stake?
The answer to question 2.3. and 6.1 shows that the right of non-disclosure can only be limited in exceptional circumstances. It can be limited for the prevention of crimes on the basis of article 4 of the Act on the protection of journalistic sources and when there is a serious threat in the sense of the ISS Act.
6.4. Do the Authorities First Search for and 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?
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Article 5 of the Act on the Protection of Journalistic Sources explicitly mentions that the secrecy of sources can only be limited if the information is necessary to prevent crimes and if the information cannot be obtained in another way. Consequently, the authorities need to search for and apply reasonable alternative measures if it is possible.
A good example is the judgement of the Court of First Instance of Brussels of June 29 2007. 40 It
concerned the registration of phone calls of a journalist. The Court of First Instance ruled that due to the nature of the facts, it was a disproportionate violation of the secrecy of journalistic sources, as it would have been possible to take alternative investigation measures. The state of Belgium was thus convicted for monitoring the journalist’s phone activity. This case is discussed in more depth in the answer to the question in title 8.