The protection of journalists' sources of information, called
also "professional secrecy", forms the basis, with the obligation to
fact check, of the journalism ethics and some freedom
of the press.
It specifically allows journalists to fact-checking with people
who agree to speak to them on the condition that their identity is not
disclosed.
who agree to speak to them on the condition that their identity is not
disclosed.
It is guaranteed
in Europe by Article 10 of the European Convention on Human Rights.
the man. This right and duty has been the subject of the most
protectors of the European Court of Human Rights, which defines it
like a " condition
essential to the free exercise of journalism and respect for the rights of the public
to be informed of matters of general interest ".
in Europe by Article 10 of the European Convention on Human Rights.
the man. This right and duty has been the subject of the most
protectors of the European Court of Human Rights, which defines it
like a " condition
essential to the free exercise of journalism and respect for the rights of the public
to be informed of matters of general interest ".
(update of August 1, 2022: Benalla case: the attempted search at Mediapart engages the responsibility of the State for disproportionate infringement of freedom of expression and the secrecy of sources (versus the right to respect for private life ).
https://www.actu-juridique.fr/ntic-medias-presse/affaire-benalla-condamnation-de-letat-pour-tentative-de-perquisition-au-sein-dun-media/
https://twitter.com/edwyplenel/status/1544738649245360128
https://www.lemonde.fr/actualite-medias/article/2022/07/07/l-etat-condamne-pour-une-tentative-de-perquisition-dans-les-locaux-de-mediapart_6133814_3236.html
https://www.dalloz-actualite.fr/flash/defense-de-s-approcher-des-sources-surtout-lorsqu-elles-eclaboussent#.YxdRY3ZBxhF
I.
The
protection by European law
Article 10 of the European Convention on Human Rights
provides that:
provides that:
“1. Everyone has the right to freedom of expression.
This right includes the freedom of opinion and the freedom to receive or
communicate information or ideas without interference
public authorities and regardless of frontiers. This article
does not prevent states from subjecting broadcasting companies,
cinema or television to an authorization system.
This right includes the freedom of opinion and the freedom to receive or
communicate information or ideas without interference
public authorities and regardless of frontiers. This article
does not prevent states from subjecting broadcasting companies,
cinema or television to an authorization system.
2. The exercise of these freedoms entailing duties
and responsibilities may be subject to certain formalities, conditions,
restrictions or sanctions provided for by law, which constitute measures
necessary, in a democratic society, for national security,
territorial integrity or public safety, the defense of order and
prevention of crime, the protection of health or morals, the protection
reputation or rights of others, to prevent the disclosure
confidential information or to guarantee the authority and impartiality of the
legal authority".
and responsibilities may be subject to certain formalities, conditions,
restrictions or sanctions provided for by law, which constitute measures
necessary, in a democratic society, for national security,
territorial integrity or public safety, the defense of order and
prevention of crime, the protection of health or morals, the protection
reputation or rights of others, to prevent the disclosure
confidential information or to guarantee the authority and impartiality of the
legal authority".
(See ECHR judgment “Goodwin v. UK, 27 March 1996).
II.
The
protection under French law
Article 109 paragraph 2 of the Code of Procedure
criminal law provides that " Any journalist, heard as a witness on information
collected in the exercise of its activity, is free not to reveal
the origin“.
criminal law provides that " Any journalist, heard as a witness on information
collected in the exercise of its activity, is free not to reveal
the origin“.
This article, although evocative of meaning, had to be supplemented to fully guarantee the protection of the journalist's sources. Indeedonly the journalist heard as a witness can thus keep, before the
judge, the secrecy of its sources, and only in these cases.
judge, the secrecy of its sources, and only in these cases.
Lhas law
known as “Dati”, No. 2010-1 of January 4, 2010 relating to the protection
secrecy of journalists' sources is the reference in terms of
source protection.
known as “Dati”, No. 2010-1 of January 4, 2010 relating to the protection
secrecy of journalists' sources is the reference in terms of
source protection.
Rachida Dati, then Keeper of
Seals at the time, lamented that the protection of sources was poorly regulated
and that a journalist could protect the identity of his informant " uniquely » when he was
questioned as a witness by an investigating judge (article 109 Code of Procedure
Criminal).
The 2010 law aims to strengthen the
principle of the protection of journalistic sources in the law of the
July 29, 1881 on freedom of the press. Article 2, paragraph 1,
of the law of 29 July 1881 on the freedom of the press now provides that
" The secret of the sources of
journalists is protected in the exercise of their duty to inform the
audience ".
principle of the protection of journalistic sources in the law of the
July 29, 1881 on freedom of the press. Article 2, paragraph 1,
of the law of 29 July 1881 on the freedom of the press now provides that
" The secret of the sources of
journalists is protected in the exercise of their duty to inform the
audience ".
However, this principle is not absolute.
Indeed, according to paragraph 3 of the same article: It cannot be directly affected
or indirectly to the secrecy of the sources that if
an overriding imperative of public interest justifies it and if the measures envisaged are strictly
necessary and proportionate to the legitimate aim pursued. This impairment
can in no case consist of an obligation for the journalist to reveal
its sources ".
or indirectly to the secrecy of the sources that if
an overriding imperative of public interest justifies it and if the measures envisaged are strictly
necessary and proportionate to the legitimate aim pursued. This impairment
can in no case consist of an obligation for the journalist to reveal
its sources ".
Thus, secrecy can only be discarded if two conditions
are cumulatively united:
are cumulatively united:
●
On the one hand, there must be an overriding imperative
of public interest
On the one hand, there must be an overriding imperative
of public interest
●
On the other hand, the infringement must be
necessary and proportionate to the legitimate aim pursued
On the other hand, the infringement must be
necessary and proportionate to the legitimate aim pursued
These criteria being taken up by case law, in particular by
the decision of the Criminal Chamber of the Court of Cassation of December 6, 2011. n°
11-83.970).
the decision of the Criminal Chamber of the Court of Cassation of December 6, 2011. n°
11-83.970).
But very strong opposition was created on the part of the
journalists' unions. Indeed, this text is according to them very vague and therefore
subject to wide interpretation.
journalists' unions. Indeed, this text is according to them very vague and therefore
subject to wide interpretation.
One of the criticisms made is that “the law does not create an autonomous offense of attacking the secrecy of
sources ".
sources ".
The identification of the source does not in itself constitute a
criminal Offence. To found a conviction, it will therefore be necessary to focus on the means that have been put in place
work to find that source. That is to say if the journalist's right to silence his source has been respected.
criminal Offence. To found a conviction, it will therefore be necessary to focus on the means that have been put in place
work to find that source. That is to say if the journalist's right to silence his source has been respected.
Faced with this opposition, the government wanted
strengthen the protection of journalistic sources and presented to
the National Assembly a bill n°1127 on June 12, 2013 strengthening the
protection of the secrecy of journalists' sources.
strengthen the protection of journalistic sources and presented to
the National Assembly a bill n°1127 on June 12, 2013 strengthening the
protection of the secrecy of journalists' sources.
The ambition of this bill was to supplement in a way
more precise the definition of the infringements that can be brought to the protection
secrecy of the journalist's sources.
more precise the definition of the infringements that can be brought to the protection
secrecy of the journalist's sources.
However, since 2013, the bill is currently
suspended, which several NGOs and actors in the journalistic world deplore.
suspended, which several NGOs and actors in the journalistic world deplore.
III.
The
offenses and penalties
The Dati law of 2010 did not bring anything new in that journalists already benefited from guarantees for
searches to which they could be subject: searches aimed at
journalists, whether on the premises of press companies, at their
home or in a professional vehicle, can only take place in
presence of a magistrate. The journalist can thus oppose the seizure of
documents making it possible to identify his informants and to make a decision on this
challenge by the judge of freedoms and detention (Article 56-2 Code of
Penal procedure).
searches to which they could be subject: searches aimed at
journalists, whether on the premises of press companies, at their
home or in a professional vehicle, can only take place in
presence of a magistrate. The journalist can thus oppose the seizure of
documents making it possible to identify his informants and to make a decision on this
challenge by the judge of freedoms and detention (Article 56-2 Code of
Penal procedure).
However, the new law still brought some novelties, in particular when journalists are heard by the courts as witnesses, they can refuse to reveal their sources of information not only
before the investigating judge but also before the criminal court and the
assize court.
before the investigating judge but also before the criminal court and the
assize court.
the most questionable and still current practice seems to be that committed by the
investigators, under the order of the magistrates of the seat who seek the sources
journalistic information without even asking the journalist himself and proceeding
to searches.
The European Court of Human Rights, on 25 February 2003, in
the case of Roemen and Schmit v. Luxembourg (51772/99), Declare that " them
searches aimed at discovering the source of the journalist – even if
they remain without result – constitute a more serious act than a summons
disclosure of the identity of the source…”.
investigators, under the order of the magistrates of the seat who seek the sources
journalistic information without even asking the journalist himself and proceeding
to searches.
The European Court of Human Rights, on 25 February 2003, in
the case of Roemen and Schmit v. Luxembourg (51772/99), Declare that " them
searches aimed at discovering the source of the journalist – even if
they remain without result – constitute a more serious act than a summons
disclosure of the identity of the source…”.
However, the aforementioned law of 4 January 2010 does not envisage
sanction in the event of violation of the secrecy of the sources. It lays down the principle
general secrecy of sources without creating an independent offense of violation of the
secrecy of sources.
sanction in the event of violation of the secrecy of the sources. It lays down the principle
general secrecy of sources without creating an independent offense of violation of the
secrecy of sources.
Breaching the secrecy of sources does not constitute a
criminal offense and therefore does not lead to direct sanctions.
criminal offense and therefore does not lead to direct sanctions.
In fact, the work of a journalist is not assimilated to a
work that can be protected by professional secrecy recognized by Article
226-13 of the Criminal Code.
work that can be protected by professional secrecy recognized by Article
226-13 of the Criminal Code.
However, the legislator has provided for procedural sanctions. Thus, under the terms of article 5 of the law of 4 January
2010, the elements obtained by judicial requisitions cannot be
added to the file if the requisition violates the principle of secrecy of sources.
added to the file if the requisition violates the principle of secrecy of sources.
MR.
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