E.U. Laws Shielding Journalists’ Sources Limited

PARIS — In January 2008, President Nicolas Sarkozy of France declared his intention of protecting reporters from having to disclose the names of their sources — a safeguard that many journalists say is necessary for free media to thrive.

“A journalist worthy of the title does not reveal his sources,” he said at a news conference. “Everyone must understand this, must accept this.”

Two years later, the French government enacted a so-called shield law, safeguarding the relationship between reporters and their sources. But it did not take long for critics of Mr. Sarkozy to accuse the president himself of breaking it. The newspaper Le Monde alleged recently that Mr. Sarkozy’s office had ordered counterespionage agents to find the source for news stories that had embarrassed the president.

While the counterespionage agency has acknowledged investigating, the Élysée Palace vehemently denies that it gave the orders. No matter who did, the incident shows that journalists and their sources cannot always rely on shield laws — though media lawyers were encouraged by a favorable ruling in the past week in the European Court of Human Rights, in a case involving a Dutch publisher.

The allegations in France come at a time of rising debate over a proposed shield law in the United States, where there is still no such protection at a national level. Questions about whether such a law is needed and about the kinds of organizations that should benefit from its protection have been inflamed by the publication of classified U.S. military documents on the whistle-blowing Web site WikiLeaks.

Senator Charles E. Schumer, a Democrat from New York, has said he wants to revise proposed Senate legislation to exclude organizations like WikiLeaks, which post unedited material online.

In theory, European shields are among the most robust in the world; Europe may lack the First Amendment, the American constitutional guarantee to free speech, but protection for the reporter-source relationship is cited in the European Convention on Human Rights, and many European countries have written it into law. In practice, however, there are still plenty of gray areas, resulting in long and expensive legal battles.

“When push comes to shove, judges make a very nice attempt at saying how important sources are,” said a lawyer at a newspaper in Britain, where a shield law similar to the one in France has been in place since 1981.

“But whenever those words are uttered you know the following words are going to be, ‘But in this case, here is why I am ordering that the name of the source be revealed,’ ” the lawyer added, insisting on anonymity to avoid compromising future cases.

In Britain, the law says protection can be waived if the authorities can demonstrate to a court “that disclosure is necessary in the interests of justice or national security or for the prevention of disorder or crime.” In France, the law says the shield can be circumvented in cases where there is “an overriding public interest.”

In Sweden, where WikiLeaks has based some of its operations, the shield laws are unusually strong. Not only are reporters largely protected from disclosing their sources, they are generally forbidden to do so. But even in Sweden, there are exceptions when national security is involved.

Last week, as the battle between Le Monde and Mr. Sarkozy intensified, the European Court of Human Rights in Strasbourg ruled in favor of a Dutch publisher, Sanoma Uitgevers, in a closely watched case involving journalists’ right to protect their sources.

The lawsuit stemmed from a police raid on the offices of Autoweek, a magazine owned by Sanoma, in 2002. The police wanted pictures of an illegal car race that had been photographed by Autoweek under an agreement with the organizers.

The editor, Tonie Broekhuijsen, refused to give them the pictures and was briefly arrested, but Sanoma eventually gave in, after the authorities threatened to shut down all of the company’s publications until it did so.

The European court, reversing earlier decisions in the Netherlands, said journalists could not be forced to hand over information unless the police, having demonstrated that disclosure was essential to the investigation of a serious crime, first obtained a warrant from a judge.

“For Dutch journalists, it’s a very good ruling,” Mr. Broekhuijsen said. “The police in Holland don’t respect the rights of journalists very much.”

Geoffrey Robertson, who represented a group of media organizations that supported Sanoma, including The New York Times, which publishes the International Herald Tribune, called the decision “an acid test for the court and for media freedom across Europe.”

“It sets a high benchmark for protection of journalistic materials and will force police and prosecutors across Europe, from Russia to France, to change their practices,” he added in a statement.

Other lawyers said, however, that the relevance of the decision might be limited outside the Netherlands, where the protection of sources has been weaker than elsewhere in Europe. So far, the Dutch courts have relied on legal precedents, rather than legislation, to decide such cases, but the government has drafted a proposed shield law.

Shield laws are not necessarily an ironclad guarantee of confidentiality. That has become clear in France, amid a long-running judicial investigation into allegations of improper political favors and funding that are swirling around the richest woman in the country,Liliane Bettencourt, and a government minister, Eric Woerth.

The DCRI, a counterespionage agency, acknowledged having investigated the source of the leaks after information from closed-door testimony appeared in Le Monde. The newspaper said agents had studied telephone records to identify a Justice Ministry official as the source.

Le Monde argues that even though the authorities did not approach Le Monde journalists directly, this kind of snooping violates the new rules on press freedom. The law states that investigating people who have relationships with journalists to discover their sources “is considered an indirect attack on the confidentiality of sources.”

Whether the prevention of leaks in the Bettencourt-Woerth affair constitutes an overriding public interest — the permitted exception under the French shield law — may now be up to the courts to decide; Le Monde says it plans to sue.

But even this case might not provide European journalists with a definitive precedent. “The real test will come when there’s a question of national security,” said Jo Glanville, editor of Index on Censorship, a free-speech campaign group based in London.

A version of this article appeared in print on September 20, 2010, on

PARIS — In January 2008, President Nicolas Sarkozy of France declared his intention of protecting reporters from having to disclose the names of their sources — a safeguard that many journalists say is necessary for free media to thrive.

“A journalist worthy of the title does not reveal his sources,” he said at a news conference. “Everyone must understand this, must accept this.”

Two years later, the French government enacted a so-called shield law, safeguarding the relationship between reporters and their sources. But it did not take long for critics of Mr. Sarkozy to accuse the president himself of breaking it. The newspaper Le Monde alleged recently that Mr. Sarkozy’s office had ordered counterespionage agents to find the source for news stories that had embarrassed the president.

While the counterespionage agency has acknowledged investigating, the Élysée Palace vehemently denies that it gave the orders. No matter who did, the incident shows that journalists and their sources cannot always rely on shield laws — though media lawyers were encouraged by a favorable ruling in the past week in the European Court of Human Rights, in a case involving a Dutch publisher.

The allegations in France come at a time of rising debate over a proposed shield law in the United States, where there is still no such protection at a national level. Questions about whether such a law is needed and about the kinds of organizations that should benefit from its protection have been inflamed by the publication of classified U.S. military documents on the whistle-blowing Web site WikiLeaks.

Senator Charles E. Schumer, a Democrat from New York, has said he wants to revise proposed Senate legislation to exclude organizations like WikiLeaks, which post unedited material online.

In theory, European shields are among the most robust in the world; Europe may lack the First Amendment, the American constitutional guarantee to free speech, but protection for the reporter-source relationship is cited in the European Convention on Human Rights, and many European countries have written it into law. In practice, however, there are still plenty of gray areas, resulting in long and expensive legal battles.

“When push comes to shove, judges make a very nice attempt at saying how important sources are,” said a lawyer at a newspaper in Britain, where a shield law similar to the one in France has been in place since 1981.

“But whenever those words are uttered you know the following words are going to be, ‘But in this case, here is why I am ordering that the name of the source be revealed,’ ” the lawyer added, insisting on anonymity to avoid compromising future cases.

In Britain, the law says protection can be waived if the authorities can demonstrate to a court “that disclosure is necessary in the interests of justice or national security or for the prevention of disorder or crime.” In France, the law says the shield can be circumvented in cases where there is “an overriding public interest.”

In Sweden, where WikiLeaks has based some of its operations, the shield laws are unusually strong. Not only are reporters largely protected from disclosing their sources, they are generally forbidden to do so. But even in Sweden, there are exceptions when national security is involved.

Last week, as the battle between Le Monde and Mr. Sarkozy intensified, the European Court of Human Rights in Strasbourg ruled in favor of a Dutch publisher, Sanoma Uitgevers, in a closely watched case involving journalists’ right to protect their sources.

The lawsuit stemmed from a police raid on the offices of Autoweek, a magazine owned by Sanoma, in 2002. The police wanted pictures of an illegal car race that had been photographed by Autoweek under an agreement with the organizers.

The editor, Tonie Broekhuijsen, refused to give them the pictures and was briefly arrested, but Sanoma eventually gave in, after the authorities threatened to shut down all of the company’s publications until it did so.

The European court, reversing earlier decisions in the Netherlands, said journalists could not be forced to hand over information unless the police, having demonstrated that disclosure was essential to the investigation of a serious crime, first obtained a warrant from a judge.

“For Dutch journalists, it’s a very good ruling,” Mr. Broekhuijsen said. “The police in Holland don’t respect the rights of journalists very much.”

Geoffrey Robertson, who represented a group of media organizations that supported Sanoma, including The New York Times, which publishes the International Herald Tribune, called the decision “an acid test for the court and for media freedom across Europe.”

“It sets a high benchmark for protection of journalistic materials and will force police and prosecutors across Europe, from Russia to France, to change their practices,” he added in a statement.

Other lawyers said, however, that the relevance of the decision might be limited outside the Netherlands, where the protection of sources has been weaker than elsewhere in Europe. So far, the Dutch courts have relied on legal precedents, rather than legislation, to decide such cases, but the government has drafted a proposed shield law.

Shield laws are not necessarily an ironclad guarantee of confidentiality. That has become clear in France, amid a long-running judicial investigation into allegations of improper political favors and funding that are swirling around the richest woman in the country,Liliane Bettencourt, and a government minister, Eric Woerth.

The DCRI, a counterespionage agency, acknowledged having investigated the source of the leaks after information from closed-door testimony appeared in Le Monde. The newspaper said agents had studied telephone records to identify a Justice Ministry official as the source.

Le Monde argues that even though the authorities did not approach Le Monde journalists directly, this kind of snooping violates the new rules on press freedom. The law states that investigating people who have relationships with journalists to discover their sources “is considered an indirect attack on the confidentiality of sources.”

Whether the prevention of leaks in the Bettencourt-Woerth affair constitutes an overriding public interest — the permitted exception under the French shield law — may now be up to the courts to decide; Le Monde says it plans to sue.

But even this case might not provide European journalists with a definitive precedent. “The real test will come when there’s a question of national security,” said Jo Glanville, editor of Index on Censorship, a free-speech campaign group based in London.

A version of this article appeared in print on September 20, 2010, on