Judgment Approved by the court for handing down.
Miranda v SSHD
handing over of material but before access has been gained to its contents is referred
to in the jurisprudence as post factum review.
101.
It is clear enough that the Strasbourg jurisprudence requires prior, or (in an urgent
case) immediate post factum, judicial oversight of interferences with article 10 rights
where journalists are required to reveal their sources. In such cases, lack of such
oversight means that there are no safeguards sufficient to make the interference with
the right “prescribed by law”. This is not surprising in view of the importance to
press freedom of the protection of journalistic sources: see, for example, Sanoma at
paras 88 to 92. As the ECtHR said in Nordisk Film & TV A/S v Denmark:
“The protection of journalistic sources is one of the
cornerstones of freedom of the press. Without such protection,
sources may be deterred from assisting the press in informing
the public on matters of public interest”.
102.
But the present case is not about disclosure of a journalist’s source. The source is
known. The question, therefore, arises whether prior or (in an urgent case) immediate
post factum judicial authorisation is required as an adequate safeguard before
journalistic material can be obtained in a case where the identity of the source is
known. Mr Kovats submits that there is a real difference between disclosure of a
journalist’s source and mere disclosure of journalistic material.
103.
There has been debate as to whether the decision in Nagla v Latvia (App. No.
73469/10, 16 July 2013) sheds light on the question whether judicial authorisation is
required for the disclosure of journalistic material, as opposed to a journalist’s source.
The applicant was a television investigative reporter. She alleged that she received an
email from a source revealing that there were security flaws in a database maintained
by the State Revenue Service. The applicant announced this during a television
report. The applicant’s home was searched and material seized by a police
investigator. She issued proceedings complaining that, in breach of article 10, she had
been compelled to disclose information that had enabled a journalistic source to be
identified. The Latvian Government pointed out that the search had not been carried
out with a view to establishing the identity of the applicant’s source (which it knew at
that point in the investigation). Rather it was to gather evidence in the criminal
proceedings against the informant.
104.
But that did not affect the court’s approach to whether article 10 was engaged: see
paras 78 to 83. The court distinguished Sanoma on the ground that the search at the
applicant’s home had a statutory basis. Section 180 of the domestic statute provided
for an investigating judge to authorise a search on application by the competent
investigating authority. In an urgent case, a search warrant could be issued by the
investigating authority, but only if authorised by a public prosecutor. Moreover, a
warrant issued under the urgent procedure had to be submitted on the following day to
the investigating judge who examined the lawfulness of and grounds for the search.
105.
The court held at para 87 that there were procedural safeguards in place by virtue of
prior judicial scrutiny. The focus of the complaint was on the adequacy of the
safeguards under the urgent review. The court held that, since the investigating judge
had the power (i) to revoke the search warrant and to declare evidence obtained as a
result of the search to be inadmissible in proceedings and (ii) to withhold the
Select target paragraph3
Connect to a paragraph
Connect to an entity
Disable highlights
Add to table of contents