Projet de loi relative à la protection des sources journalistiques
Wetsontwerp tot bescherming van de journalistieke bronnen
Law proposal approved by the Chamber of representatives, July 2004
Amended by the Senate, 27 January 2005
Final approval by the Chamber of representatives is expected in March 2005
By Dirk Voorhoof, Ghent University, Belgium
After several law proposals since 1985 a bill on the protection of journalistic sources is now finally on its way to a vote by the Belgian parliament. After a first reading by the Chamber of representatives in July 2004, the Senate on 27 January 2005 approved a modified version. The text has now been sent back to the Chamber for final approval of the law.
Since the case of Ernst and others v. Belgium (ECourtHR 15 July 2003), in which the European Court of Human Rights condemned Belgium for unnecessary and disproportionate interferences by the judicial authorities which failed to respect the confidentiality of journalistic sources, journalists and their professional organisations have called for a legal framework to protect journalistic sources. The request for such a legal framework was put on the agenda again after the searches at the office and in the home of Stern-journalist Hans Martin Tillack in 2004. In a judgment of 1 December 2004, the Belgian Supreme Court (Hof van Cassatie / Court de Cassation) was of the opinion that as part of a legitimate investigation into bribery of a civil servant of the EU, the searches at H.M. Tillack’s home and in the Brussels’ office of Stern were not to be considered as illegal, nor violated Article 10 of the European Convention. A strong call for the protection of journalistic sources was also made on 26 January 2005 at a press conference organised by the newspaper De Morgen, after it was revealed that a judicial investigation had taken place with regard to the telephone traffic of one of its journalists Anne de Graaf. Also the organisation of Flemish professional journalists and Reporters sans Frontières protested sharply against the inspection of reporters’ phone records as a manifest disrespect for the confidentiality of journalistic sources.
The draft law on the protection of journalistic sources that was approved by the Senate on 27 January 2005 is very much in line with the Committee of Ministers’ Recommendation No. R (2000)7 of 8 March 2000 to member States on the rights of journalists not to disclose their sources. The law project not only formulates a broad notion of who is a journalist and what is protected information, it also reduces substantially the possibility of compelling journalists to reveal their sources, as well as any kind of investigative measures taken by the judicial authorities to circumvent the right of journalists not to reveal their sources. A disclosure order is only in accordance with the law if there are no alternative means of access and if the information in the possession of the journalist is crucial for the prevention of crime that constitutes a serious threat to the physical integrity of one or more persons. Journalists exercising their right to protection of sources can neither be prosecuted for “fencing” (heling / recel), nor for complicity in the offence of breach of professional secrecy.
Unofficial English translation, by Dirk Voorhoof (*)
This law regulates a subject-matter referred to in Article 78 (°) of the Constitution
(°) Article 78 of the Belgian Constitution refers to a competence of the federal parliament
The protection of sources as referred to in Article 3 is guaranteed in respect of the following persons:
1° Journalists, which means anyone who is working independently or as an employee, as well as every legal person, who regularly and directly contributes to the gathering, editing, production or distribution of information for the public by way of a medium
2° Editorial staff, which means anyone who in the exercising of his function may be in a position to have knowledge on information that can lead to the revelation of a source, regardless whether this is through the gathering, the editorial treatment, the production or the distribution of this information.
The persons specified in Article 2 have the right to keep silent about their sources.
Except in the cases referred to in Article 4, they cannot be compelled to reveal their information sources or to communicate data, pre-recordings or documents that inter alia
1° may reveal the identity of their informants
2° may reveal the nature or origin of their information
3° may reveal the identity of an author of a text or audiovisual production
4° may reveal the content of information and of documents themselves, if that may lead to the informant being identified.
Only on request of a judge can the persons specified in Article 2 be compelled to reveal sources of information as referred to in Article 3, if they are of a kind to assist in the prevention of crimes that constitute a serious threat to the physical integrity of one or more persons, including the crimes referred to in Article 137 (°) of the Criminal Code that offend against the physical integrity. Such a request is only legitimate if the following cumulative conditions are fulfilled:
1° the requested information is of crucial importance for the prevention of these crimes;
2° the requested information cannot be obtained in another way.
(°) Article 137 of the Criminal Code refers to crimes of terrorism
Detection measures and investigative measures such as searches, seizures and telephone tapping shall not apply to data relating to information sources of the persons referred to in Article 2, unless the data may prevent the crimes referred to in Article 4 and subject to the conditions set out under that Article.
The persons referred to in Article 2 cannot be prosecuted under Article 505 (°) of the Criminal Code when they are exercising their right to keep silent about their sources.
(°) Article 505 of the Criminal Code punishes inter alia those who receive or use documents which have been stolen or have been obtained by crime.
In case of a breach of professional secrecy in the terms of Article 458 (°) of the Criminal Code, the persons referred to in Article 2 cannot be prosecuted under Article 67, par. 4 (°°) of the Criminal Code when they are exercising their right to keep silent about their sources.
(°) Article 458 of the Criminal Code punishes breach of the duty of professional secrecy.
(°°) Article 67, par. 4 of the Criminal Code criminalises complicity in crime.
(*) With thanks to Marie McGonagle, Senior Lecturer in Law, National University of Ireland, Galway, Ireland.