Protectors of the Truth

So often, the press and government are viewed as in conflict with one another. As one is a watchdog for the other, and vice versa, the question of expression throughout Europe has been protected by a series of conventions on the rights of individual expression as protected by the European Convention on Human Rights and successive national constitutions. In Article 2, Section 10 of the European Convention on Human Rights, under Freedom of Expression, “for preventing the disclosure of information received in confidence” helps to establish a citizen’s right to privacy, such as a journalist refusing to reveal a source who disclosed information in private. Latvia signed and ratified this convention in 1997. In the Latvian Constitution, amended through 2016, Article 100 states that “everyone has the right to freedom of expression, which includes the right to freely receive, keep and distribute information to express his or her views.”

With both conventions predetermined, mistakes are sometimes made. Without time for deliberation, these rights can be ignored in the interest of protecting citizens. That was the defense made by the Latvian police after they violated journalist Ilze Nagla’s Article 10 rights in Nagla v. Latvia.

Source: Ilze Naglia

Nagla’s home was searched following a broadcast aired on the national television network Latvijas televizija (LTV) in February 2010, where she reported on an information leak at the State Revenue Service Database, where information regarding income, taxes, identity information on public officials, companies, and private citizens were said to have been released. A week later, her source “Neo” published information concerning the salaries of the state officials.

During the investigation, police pressured Nagla to disclose her source’s identity, yet Nagla refused citing her right to nondisclosure outlined in section 22 of the Law on Press and Other Mass Media.

On May 11, 2010 Nagla’s home was searched, with her laptop, external hard drive, and memory cards were searched. The warrant cited evidence of communication between Nagla and the said “Neo”, suggesting that Ms. Nagla might have had information regarding the leaks. The government followed saying that the warrant could retroactively have been approved by the judge on investigation, which was granted the day after the search.

Key Legal Arguments on Each Side

The Latvian Government argued that the search of Nagla’s property “did not relate to journalistic sources, finding that the search at Ms Nagla’s home and the information capable of being discovered there came within the sphere of protection under Article 10 of the Convention.” They viewed it to be more important to prevent crime and protect the rights of others rather than protect the rights of the individual.

Naglia complained that she had been lawfully compelled to supply information that would have allowed her journalistic source to be identified, violating her right to receive and disseminate information from protected sources by Article 10 of the Convention. The case cited a specific part of the convention stating that “for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary,” all of which would have been violated in the case the Ms. Naglia was forced to reveal her sources (Art. 10.2). Their reputations would have been tarnished; her right to protect democracy using sources would be tarnished for fear of sources not coming forward; and the judiciary’s ability to hear cases involving all necessary and truthful information for the creation of decisions in the event that she was forced to reveal her source information.

Thinking specifically to the context of Article 10 on this instance, the European Court’s deliberations in reference, represent a series of recent findings of violations where the protections of journalistic sources and investigative journalism highlight the vital importance of freedom of expression and information in democracy. However, several of the deliberations have also demonstrated that the precedent regarding this article have large areas seeking improvement. Article 10 of the Convention has “revealed… a lack of operationalization, organization and enforcement of the right of access of information at the domestic level: national authorities need clearly an extra push to implement this fundamental right into their administrative and legal practices”.

As a bulwark of democracy, the press is essential to ensuring accountability, honesty and clear functioning of government. The broader significance of journalists being forced to reveal their sources could have catastrophic impacts on the rest of societal function. Without protections for individuals at risk of retaliation, no individual would feel safe enough to come forward to attempt to change institutions that they feel are unfair to them. The inability to speak out through anonymity means that speech is somewhat restricted, because consequences limit it. In order to have complete freedom of expression through the press and society, individuals must be allowed to remain in a shroud of anonymity which will protect them and empower them to speak the truth.

On the other hand, the ECtHR found that the reasons provided by the authorities had not been “relevant” or “sufficient”, and did not develop a “pressing social need”. The information which Ms. Nagla was providing “kept the public informed about salaries paid in the public sector in the context of a climate of economic crises and austerity, as well as exposing security flaws in the database”. There was no information linking the applicant to “Neo” in any way other than her capacity as a journalist and their communication stopped at the day of the broadcast.

Outcomes of the court’s decision

In Nagla’s support, the right of journalists to protect their sources should not be considered a privilege, independent of the lawfulness of lawlessness of their sources, but rather it is an intrinsic part of information rights and should be treated most carefully.

When considering the case, the judge’s involvement in a post factum review raised questions of the interests of the investigation. He was unable to prove that the public interest was not deserving of the utmost protection of the journalist’s freedom of expression, including source protection and the safety of research material. The police authorities felt that the evidence linked to a cybercrime could not be considered sufficient as there was no indication that evidence could be destroyed by the journalist.

The court attempted to right the wrong. The European Court of Human Rights found that the search warrant was drafted so vaguely that the seizure of ‘any information’ pertaining to the crime alleged of the source, “Neo” was invalid. It found that the Nagla’s Article 10 rights had not been upheld during the search, because of the nature of the search and the pressures to reveal her sources.

Evidence of the Decision

The court decided that the journalist, Nagla, had the right not to reveal her sources. As the right of information, the investigating authorities failed to balance the interests of the investigation (evidence collection) against the public interest protecting the journalist’s freedom of expression, therefore violating Article 10. The Court of Latvia paid the applicant 10,000 Euros in respect of the damage and 10,000 Euros in respect of costs and expenses. The applicant, Nagla, they said, was only responsible for acting in her capacity as a journalist.

The court succeeded in passing a fair judgment in the case of the journalist. From the advent of the case, Nagla’s rights were violated by the fact that her sources remained unprotected. From there, the failure to receive a warrant that fairly addressed the situation further as wrong. Nagla received her information on the breach in confidence, thus was in every right to protect her sources. Why the first court came to their conclusion came from a belief that the rights of others would be more important than protecting the Constitutionally correct richt of a single Latvian citizen. The misjudgement also came in the haste to find something that was not true.

When thinking of precedent. The case, of Nagla V. Latvia presents the question of when the rights of the individual supersede those of others. In 2013, Nagla V. Latvia developed a precedent that would be used once again to protect sources from discovery. Protecting sources is imperative in gathering and revealing information necessary in the protection of democracy, so that such individuals do not face repercussions from their knowledge.

Thinking forward, the connection between the confidentiality of journalistic sources and the freedom of expression only becomes more intrinsically linked. In the case of Nagla, her assurances that her right to the protection of her sources outweighed the importance of the investigation demonstrates her will that this was of the utmost importance. Confidentiality is essential to ensuring that expression may remain free, especially in the context of the press. How can journalists continue to protect civil liberties if their sources are unable to express themselves with complete protections from discovery. The sources will be more fearful of approach when their rights have the chance of being violated, as evidenced by this case.

When pondering circumstances in which a journalist would be inclined to reveal her source’s information, there are none which would outweigh the importance of the integrity of a journalist’s source protection. In most extreme cases, such as the prevention of a terrorist attack, it remains paramount that information must be truthful, but knowing the name and connections of a source does little to make or break the validity of such information. In less extreme examples, an investigation that solely relies on the testimony of a single individual protected by a journalist will most likely fail to stand tall without further evidence. As broadly as national security, or as finely as a police investigation, the ability to weather rights by the circumstances of a threat does not make a democracy free. Looking at the state of affairs, typically individuals would like a face to an event. If an attack on public property were to take place, or knowledge of a crime is found out, individuals might seek a wrongdoer. A source who hopes to help to the best of their ability deserves to be protected from such retribution as simple as ostracization, or as complex as incarceration.

All to be found, Nalga v. Latvia was only the first of issues that refined the push for greater protections under Article 10 of the Convention. The future of the court is looking to continue improving upon precedent and ensuring that all freedoms to press, expression and speech are protected by law.