6 December 2006

Alert

CORRECTION: Jailed journalists released; new legislation needed to protect confidentiality of sources in future, says ARTICLE 19


Incident details

Bart Mos, Joost de Haas

journalist(s)

raided
(ARTICLE 19/IFEX) - Please note, the previous version of this alert incorrectly stated that the court order requiring the two journalists to disclose their sources remained in force. In fact, the order has been dropped. ARTICLE 19 apologises for the error. The corrected version of the 30 November 2006 ARTICLE 19 statement follows:

DETENTION OF DUTCH JOURNALISTS SHOWS NEED FOR INTRODUCTION OF LAW TO PROTECT JOURNALISTS' SOURCES

In the wake of the release of two journalists from detention (on 30 November), ARTICLE 19 calls on the Dutch authorities to adopt legislation guaranteeing the right of protection of sources.

Bart Mos and Joost de Haas of the daily De Telegraaf were sent to prison on Tuesday at the order of an investigative judge in The Hague, after declining to reveal the source for a story published in January. The two journalists had alleged that secret service files on official corruption were being leaked to the underworld, and quoted from a dossier on the notorious criminal Mink K., which they alleged had ended up in K's own hands. The disclosure of the source was sought by defence lawyers for Paul H., a former secret agent on trial for selling the files in question. Today, the district court in The Hague ordered the journalists' release.

"This case demonstrates how anonymous sources help journalists expose serious problems in public institutions, to the benefit of society as a whole. Their ability to do so should not be sacrificed unless there is a serious and overriding need to do so. It is now clear that there never was an overriding need to imprison Bart Mos and Joost de Haas and it is high time that legislation is introduced to protect journalists' right to protect their sources," said Toby Mendel, ARTICLE 19's Law Programme Director.

ARTICLE 19 recalls that the European Court of Human Rights has described the right of journalists to protect their sources as "one of the basic conditions for press freedom", and that exceptions can only be justified "by an overriding requirement in the public interest."(1) The Council of Europe, through Recommendation No. R (2000)7 of the Committee of Ministers (2), has elaborated on the circumstances under which a disclosure may be ordered. The Recommendation recognises that enabling the proper defence of a person on trial for a major crime may justify an order to disclose, but only when:

- Reasonable alternative measures do not exist or have been exhausted;
- The importance of ordering disclosure outweighs the public interest in non-disclosure, meaning that:
- an overriding requirement of the need for disclosure has been proved;
- the circumstances are of a vital and serious nature;
- there is a pressing social need for the disclosure.(3)

ARTICLE 19 is highly concerned that Dutch law does not require that these principles are followed and that, as a consequence, the investigative judge appears to have given undue weight to H.'s right to defend himself over the right of society to be well-informed about the functioning of public institutions. The Netherlands does not explicitly recognise the protection of sources under domestic law, although the right can be invoked as a component of Article 10 of the European Convention on Human Rights, which is directly effective. This position is out of step with the standard of protection required in the Council of Europe Recommendation, which states that:

"Domestic law and practice in member States should provide for explicit and clear protection of the right of journalists not to disclose information identifying a source in accordance with Article 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms . . . " (4)

The case of Mos and de Haas is not unique. In 2000, journalist Koen Voskuil spent eighteen days in jail after refusing to disclose the source for a story alleging that police had deliberately flooded Mink K.'s apartment to create a pretext for entering the premises. Voskuil was eventually released without having disclosed his sources, because the Court of Appeals was able to establish the truth by hearing other witnesses - something which, according to the Council of Europe's Recommendation, should have prevented the order to disclose the source in the first place.

Both Voskuil's case and the present case show the injustice that will result if judges are expected to devise exceptions to the protection of sources on a case-by-case basis rather than relying on a carefully crafted piece of legislation. The lack of legal clarity may also chill anonymous sources, since they are unable to predict whether they can rely on their identity remaining concealed.

ARTICLE 19 calls on the Dutch authorities to:

- Initiate a process of drafting a clear provision guaranteeing the right of journalists to maintain the confidentiality of their sources.

NOTES:

ARTICLE 19 is an independent non-profit organisation that works around the world to protect and promote the right to freedom of expression. It takes its name from Article 19 of the Universal Declaration of Human Rights, which guarantees freedom of expression.

- A proposal to guarantee the right to protection of sources was put forward by a former MP in 1993, but no further action was taken after a commission established by the Netherlands Society of Editors-in-Chief and the Netherlands Association of Journalists found that the direct effectiveness of Article 10 of the ECHR provided a sufficient safeguard of the right.

- The Hague district court was due to decide on extending the detention of the two journalists by up to 12 days on Wednesday.

(1) Goodwin v. the United Kingdom, 27 March 1996, Application No. 17488/90 (European Court of Human Rights), para. 39.

(2) Recommendation No. R (2000)7 of the Committee of Ministers to Member States on the right of journalists not to disclose their sources of information, adopted 8 March 2000.

(3) Id., Principle 3(b).

(4) Id., Principle 1.



Source

ARTICLE 19: Global Campaign for Free Expression
6-8 Amwell Street
London
EC1R 1UQ
United Kingdom
info (@) article19.org
Fax:+44 20 7278 7660
Netherlands
 
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