BIG BROTHER WATCH AND OTHERS v. THE UNITED KINGDOM JUDGMENT
journalist to reveal the identity of his or her sources, and the authorities
carrying out searches at a journalist’s home and workplace with a view to
uncovering his or her sources (compare Goodwin, cited above, § 39, with
Roemen and Schmit v. Luxembourg, no. 51772/99, § 57, ECHR 2003-IV).
The latter, even if unproductive, constitutes a more drastic measure than an
order to divulge a source’s identity, since investigators who raid a
journalist’s workplace have access to all the documentation held by the
journalist (see Roemen and Schmit, cited above, § 57).
444. An interference with the protection of journalistic sources cannot
be compatible with Article 10 of the Convention unless it is justified by an
overriding requirement in the public interest (see Sanoma Uitgevers B.V.,
cited above, § 51; Goodwin, cited above, § 39; Roemen and Schmit, cited
above, § 46; and Voskuil v. the Netherlands, no. 64752/01, § 65,
22 November 2007). Furthermore, any interference with the right to
protection of journalistic sources must be attended with legal procedural
safeguards commensurate with the importance of the principle at stake (see
Sanoma Uitgevers B.V., cited above, §§ 88-89). First and foremost among
these safeguards is the guarantee of review by a judge or other independent
and impartial decision-making body with the power to determine whether a
requirement in the public interest overriding the principle of protection of
journalistic sources exists prior to the handing over of such material and to
prevent unnecessary access to information capable of disclosing the
sources’ identity if it does not (see Sanoma Uitgevers B.V., cited above,
§§ 88-90).
445. Given the preventive nature of such review the judge or other
independent and impartial body must be in a position to carry out this
weighing of the potential risks and respective interests prior to any
disclosure and with reference to the material that it is sought to have
disclosed so that the arguments of the authorities seeking the disclosure can
be assessed properly. The decision to be taken should be governed by clear
criteria, including whether a less intrusive measure can suffice to serve the
overriding public interests established. It should be open to the judge or
other authority to refuse to make a disclosure order or to make a limited or
qualified order so as to protect sources from being revealed, whether or not
they are specifically named in the withheld material, on the grounds that the
communication of such material creates a serious risk of compromising the
identity of journalist’s sources (see Sanoma Uitgevers B.V., cited above,
§ 92 and Nordisk Film & TV A/S v. Denmark (dec.), no. 40485/02,
ECHR 2005-XIII). In situations of urgency, a procedure should exist to
identify and isolate, prior to the exploitation of the material by the
authorities, information that could lead to the identification of sources from
information that carries no such risk (see, mutatis mutandis, Wieser and
Bicos Beteiligungen GmbH v. Austria, no. 74336/01, §§ 62-66,
ECHR 2007-XI).
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