The EU Needs a First Amendment

If this Daily Telegraph story is to be believed, and I think from other reading that it's basically correct as far as it goes, then the EU has a serious press freedom problem. But I admit I'm not as familiar with the relevant EU and ECHR case law as I'd like.

In EU judges end human rights law for press, Ambrose Evans-Pritchard writes that,

The European Court has quietly brushed aside 50 years of international case law in a landmark judgment on press freedom, ruling that Brussels does not have to comply with European human rights codes.

In a judgment with profound implications for civil liberties, Euro-judges backed efforts by the European Commission to obtain the computers, address books, telephone records and 1,000 pages of notes seized by Belgian police – on EU instructions – from Hans-Martin Tillack, the former Brussels correspondent of Germany's Stern magazine.

It is a test case of whether the European Court will adhere to the democratic freedoms and liberal principles upheld for the last half-century by Europe's top rights watchdog, the non-EU Court of Human Rights in Strasbourg, or whether it will pursue a more authoritarian line as it grows in power.

Mr Tillack had written a series of hard-hitting exposes of EU fraud and skulduggery, relying on inside sources. By obtaining his archive of investigative files amassed over five years, the commission can identify key sources and “burn” a generation of EU whistleblowers.

He was arrested by the Belgian police in March and held incommunicado for 10 hours for allegedly bribing an official to obtain internal EU documents.

The action was requested “urgently” by the EU's anti-fraud office, which claimed Mr Tillack was about leave for America. In fact, he was moving back to Hamburg.

Leaked anti-fraud office documents have since shown that the allegation was concocted over dinner between two commission spokesmen.

…

Mr Tillack filed a lawsuit at the European Court with the backing of the International Federation of Journalists to block commission access to his records.

The federation pleaded that the EU's attempt to identify a journalist's sources in that fashion was a “flagrant violation” of press protection established over decades in European Convention law.

If the commission is allowed to sift through his records, it would render investigative journalism “virtually impossible” in Brussels.

Mr Tillack's lawyers cited extensive case law, including the case of “Goodwin v UK” in 1996, ruling that the protection of sources was the cornerstone of a free press and “genuine democracy”.

The human rights court ruled against Luxembourg last year that identifying a source of leaks did not constitute a “pressing social need” that could justify a breach of Article 10 on press freedom.

But the EU's Court of First Instance ruled against Mr Tillack last week on the grounds that the case was a strictly Belgian matter.

Euro-judges accepted commission claims that it played no role in the arrest of Mr Tillack, even though leaked anti-fraud office documents show it orchestrated the raid from the beginning.

I think I can understand why an EU court would be reluctant to issue what appears to amount to an injunction against an ongoing Belgian criminal proceeding, even if the applicant claims that the Belgian authorities are acting as a laundry for corrupt EU officials. From this distance, though, it doesn't really matter to me whether the fundamental flaw is in Belgian law, or in the EU's unwillingness to impose on Belgian authorities. What seems strange to me is that this sort of massive shopping expedition in a journalist's notes is allowed.

Note that I see this as distinct from compelling a journalist to testify about a crime the journalist has personally witnessed or participated in. In those cases, I think a journalist has the same obligation as any other citizen. That's an easy case. (Conversely, I don't think journalists should have to testify about hearsay relating to crimes, including post-hoc confessions by people who claim they did a crime.)

The hardest case, in my view, is in a particularized leak investigation relating to a specific classified document. If the leak was of a classified document, then the journalist may be the only source of information as to the identity of the person who provided the information in violation of law. At that point we have the clash between whistleblowing and rule of law. To date, the courts in the US at least have come down for the latter (cf. the Plame case), and I'm not prepared to say that's wrong.

But there is a big difference between a particularized effort to compel testimony as the identity of a source when all other ways to get the information have failed, and the Hans-Martin Tillack matter, which appears to be a very broad attempt to seize all of a journalist's notes—and one based on trumped-up claims to begin with.