Ordering a journalist to give evidence on a source was not justified, even though the source himself had come forward to the police (ECHR)

The case Becker v. Norway (application no. 21272/12) concerned a journalist, Cecilie Becker, for a daily newspaper who was ordered to give evidence in a criminal case brought against one of her sources, Mr X, for market manipulation. Mr X had confirmed to the police that he had been Ms Becker’s source for an article she had written in 2007 about the Norwegian Oil Company’s allegedly difficult financial situation. The company’s stock decreased after the article. Mr X was subsequently charged with using Ms Becker to manipulate the financial market. Ms Becker refused to testify at any stage of the proceedings against Mr X, and the courts therefore ordered her to testify about her contacts with him, finding that there was no source to protect as he had already come forward. They also considered that her evidence might significantly assist the courts in elucidating the case. Mr X was however convicted as charged before the final decision on her duty to give evidence had been made.

The European Court of Human Rights in its decision of 5th October 2017, held, unanimously, that there had been: a violation of Article 10 (freedom of expression) of the European Convention on Human Rights. The Court found that its assessment turned, above all, on whether Ms Becker’s evidence had been needed during the criminal investigation and subsequent court proceedings against her source. It pointed out that her refusal to disclose her source (or sources) had not at any point in time hindered either the investigation or proceedings against Mr X. Indeed, the first-instance court which convicted Mr X had been informed by the prosecutor that no motion for extension (pending a final decision on the duty to give evidence) had been made, because the case had been sufficiently disclosed even without Ms Becker’s statement. It also bore in mind that Ms Becker’s journalistic methods had never been called into question and she had not been accused of any illegal activity. Furthermore, her right as a journalist to keep her sources confidential could not automatically be removed because of a source’s conduct or because the source’s identity had become known. The Court was not therefore convinced that either the circumstances in the present case or the reasons provided had justified compelling Ms Becker to testify. The Court held that Norway was to reimburse Ms Becker the fine imposed on her for refusing to give evidence on her source, in the event that it had already been paid. (hudoc.echr.coe.int)