Strasbourg, 15 June 2011

CDMC(2011)002rev4
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STEERING COMMITTEE
ON THE MEDIA AND NEW COMMUNICATION SERVICES

(CDMC)

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Comments by the Steering Committee on the Media and New Communication Services (CDMC) on Parliamentary Assembly Recommendation 1950 (2011)
on the Protection of Journalists’ Sources

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    1. The CDMC welcomes Recommendation 1950 (2011) of the Parliamentary Assembly of the Council of Europe on the protection of journalists’ sources. The recommendation is timely because of the large number of cases in which public authorities in Europe have obliged, or attempted to oblige, journalists to disclose their sources, despite the clear standards set by the European Court of Human Rights and the Committee of Ministers. Furthermore, national laws on surveillance, anti-terrorism and data retention can compromise journalism and thus have a serious ‘chilling effect’ on freedom of the media. The CDMC shares the opinion that free, independent and pluralistic media are a necessary condition of any true democratic society.

    2. The media plays a crucial role in our society as its mission is to seek, analyse and disseminate information of general interest. The right for journalists not to disclose information identifying a source is not only necessary but indispensable in order for them to gain, and retain, the confidence of their sources and thus guarantee freedom of information.

    3. The CDMC shares the opinion that the disclosure of information identifying a source should be limited to exceptional circumstances where it can be convincingly established that vital public or individual interests are at stake. Seeking disclosure of sources should not be seen as an alternative to poor investigation by law enforcement agencies and authorities. The CDMC stresses the importance of having competent authorities request the disclosure of a source. In the CDMC’s view, the decision should lie with a court of law given that vital interests must outweigh the right not to disclose sources. Disclosure should only be sought when alternative measures have proved inadequate or been exhausted. Consequently, disclosure of journalists’ sources must be decided on a case-by-case basis.

    4. With regard to the protection of the right of the public to be informed on matters of public concern, it should be possible for anyone who has knowledge or information about such matters to be able to either post it confidentially on third-party media, including Internet networks, or submit it confidentially to journalists. The CDMC would emphasise that states cannot ensure that information is delivered in a secret way, but can encourage the creation of systems that protect sources.

    5. The protection of “whistle-blowers” is closely linked to the right of every person to disclose to the media, confidentially or otherwise, information about unlawful acts and other wrongdoings which may be of public concern. The CDMC therefore shares the opinion that member states should review legislation in this respect in order to ensure consistency of domestic rules with European standards.

    6. The CDMC wishes to stress the importance of journalists’ sources not being compromised by the increasing technological possibilities for public authorities to exert control over journalists’ use of mobile telecommunication and the Internet. Moreover, interception of correspondence, surveillance of journalists, or search and seizure of information, must not impede the protection of journalists’ sources. Thus, Internet service providers and telecommunication companies should not be obliged to disclose information which may lead to the identification of journalists’ sources without a court order, issued subject to suitable procedural safeguards.

    7. The CDMC shares the opinion of the Parliamentary Assembly that, when transposing the European Union’s Directive 206/24/EC of 15 March 2006 on the retention of data generated or processed in connection with the provision of publicly-available electronic communications services or of public communications networks, steps must be taken to ensure that legal provisions enacted by member states are consistent with the right of journalists not to disclose their sources under Article 10 of the European Convention of Human Rights and with the right to private life under Article 8 of the European Convention of Human Rights. Applicable standards should be recalled, in particular the principle that personal data cannot be preserved for longer than what is deemed necessary in view of the purpose for which it was originally stored (Article 5 of the Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data – CETS 108). Furthermore, data should only be retained subject to conditions on derogations provided for in Article 8.2 of the European Convention on Human Rights and Article 9 of Convention 108 (i.e. in accordance with the law and necessary in a democratic society). The principles set out in Council of Europe Recommendation No. R(87) 15 regulating the use of personal data in the police sector are fully relevant and should therefore also be recalled.

    8. With reference to the issues raised in paragraphs 12 and 13 of the Recommendation, the CDMC believes that it is indeed important to reconcile the protection of journalists’ sources with the use of new technologies. Indeed, in the case of crimes, investigators should be allowed to use efficient tracking tools in order to identify the perpetrators. However, there must be a clear legal framework for such activities and robust and hefty safeguards which are commensurate to the technological means employed.

    9. The CDMC is of the opinion that the fight against cybercrime is not a sufficient reason to justify systematic impingement of protection of journalists’ sources. The proportionality of any measures taken is essential and the decision on their adoption should be made by a court of law on a case-by-case basis

    10. With reference to the issue raised in paragraph 15 of the Recommendation, the CDMC wishes to underline that the definition of media is changing. It believes that, in certain circumstances, the protection of sources may have to be extended to new media actors. The Parliamentary Assembly may wish to note that some member States have already adopted a broader approach in line with CM Rec(2000)7 or even extended the protection of sources to non-professional media actors.

    11. As regards requests to competent steering committees to draw up guidelines on the subject, in co-operation with journalists and media freedom organisations, the CDMC would refer to the ongoing reform and prioritisation process in the Council of Europe during which the terms of reference and mandate of a new intergovernmental body will be finalised. It would strongly encourage the new steering committee to implement the work suggested by the Parliamentary Assembly and hopes that media will be a priority in its work.

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