Court cites need to protect confidentiality of journalists’ sources

Reporters Without Borders hails the fact that a French court has cited the need to protect the confidentiality of journalists’ sources as grounds for ruling that a prosecutor acted illegally when he allowed the police to examine the phone records of two Le Monde reporters who were covering a high-profile case involving L’Oréal heiress Liliane Bettencourt. “This is a very positive signal that must be welcomed even if we regret that it has come so late,” the press freedom organization said. A Bordeaux appeal court ruled on 5 May that examination of the journalists’ detailed phone records on the orders of Nanterre public prosecutor Philippe Courroye violated article 10 of the European Convention on Human Rights and a January 2010 amendment to France’s 1881 press law protecting the confidentiality of sources. The case was prompted by a report in Le Monde on 2 September 2010 that police had searched Bettencourt’s home. When Bettencourt’s lawyer complained that the confidentiality of a judicial investigation had been violated, Courroye ordered the police to scour the journalists’ phone records in a bid to identify who had told them about the raid. Explaining their ruling, the Bordeaux appeal court judges said: “The police investigation was in response to a claim – which was at the very least moot – by a private individual about the probability or even just the possibility that a violation of professional confidentiality had taken place. The requirement of an overriding public interest was therefore not satisfied.” Under the new French law, there has to be an “overriding public interest” for the police and judicial authorities to be able to investigate a journalist’s sources. “Prosecutor Courroye’s action was grave,” Reporters Without Borders said. “By compromising the confidentiality of journalists’ sources, he was jeopardizing the trust of their informers, the very basis of investigative journalism. All the more so in cases that upset the government or some of its powerful friends. We are relieved that a court has finally recognized that his action was illegal. “It was nonetheless always clear that the law had been broken and it is incredible that we have had to wait so long for such as obvious ruling. And that this was only on the initiative of a Bordeaux investigating judge who wanted to be sure that an investigation was legal. Ever since the spying on journalists first came to light in September 2010, no police or judicial official has condemned the seizure of journalists’ phone records. “Even more seriously, the prosecutor’s office shelved two complaints by Le Monde on the grounds that violating the confidentiality of sources was not a criminal offence. The newspaper filed a new complaint in March, this time formally registering itself as a civil plaintiff. We hope this complaint will be treated properly.” A judicial precedent has now been set as regards application of the law on the protection of journalists’ sources. But the damage has already been done in this case. More must be done in the future to ensure that journalists’ sources really are protected. As the European Court of Human Rights ruled on 4 September 2010 (Sanoma Uitgevers BV v. Netherlands): “It is clear, in the court’s view, that the exercise of any independent review that only takes place subsequently to the handing over of material capable of revealing such sources would undermine the very essence of the right to confidentiality.” To prevent such abuses recurring, violations of the confidentiality of journalists’ sources should be subject to criminal sanctions and the circumstances in which this confidentiality may be legally breached should be strictly defined. Unfortunately, the law does not define “overriding public interest.” Any official order endangering the confidentiality of journalists’ sources should be referred to an independent and impartial body before it is carried out. France is ranked 44th in the latest Reporters Without Borders world press freedom index. Its fall in the index in recent years is due in part to violations of the confidentiality of several journalists’ sources, including journalists working for Le Monde and Rue 89. Harassment of the Mediapart, Rue 89 and Bakchich.info news websites in connection with the Bettencourt case was part of the reason for France’s inclusion in the list of “countries under surveillance” in the latest annual Reporters Without Borders report on the Internet.