Becker v Norway

The ECHR recently handed down judgment in Becker v Norway – an important case concerning the protection of journalistic sources. In a unanimous decision the court found that Norway had violated Becker’s Article 10 rights by causing her to be fined for not giving evidence against her source in related criminal proceedings.

Becker’s source faced prosecution for using publication of the article in question to manipulate the stock market (in particular the price of the Norwegian Oil Company’s stock) – a charge which flowed from having identified himself as providing the information for Becker’s story. Nevertheless Becker, relying on both Article 10 and the relevant Norwegian law, refused to testify against him.

In reaching its decision the court relied upon a number of principles reiterated in recent case law – namely that sources would be deterred from assisting the press by informing on matters of public interest were such stringent protections not available (Goodwin v United Kingdom); that any deviation from the general principle cannot be compatible unless justified by an overriding public interest (Sanoma Uitgevers BV v the Netherlands); and that a journalist’s Article 10 rights cannot automatically be extinguished by virtue of a source’s own conduct (Nagla v Latvia).

There are four key points for journalists to take from this case:

1. Unless there is an overriding public interest a journalist’s refusal to identify a source for the purpose of any related proceedings will fall under the protections guaranteed by Article 10 – especially in circumstances where the failure to disclose does not hinder any investigation nor prevent the related proceedings from continuing (and consideration should always be given as to whether other sources may also be implicated in the event that disclosure were given);

2. Even if a source voluntarily assists the related investigation/proceedings, such that there is in fact no source to protect, a journalist is not automatically compelled to identify the source as having provided the relevant information;

3. The court in the present case had regard to the journalist’s identifiably legal activities – but failed to counter the implication that should a journalist act improperly or unlawfully the right to source protection might not be guaranteed (Tillack v Belgium). Journalistic source protection should in any event override any consideration of the journalist’s own conduct;

4. Where whistleblowing is concerned source protection may not be qualified by the requirement for the source to have informed his/her superiors of the alleged unlawful practices before publication – however the recent decision in Görmüş and others v. Turkey leaves this issue unresolved and further clarification is necessary.

For more information contact SM&B’s Media: Content & Disputes team at journalistenquiries@smab.co.uk.