Dutch Supreme Court: journalists’ source protection prevails right to a fair trial

The Dutch law does not provide in adequate source protection for journalists. This was the conclusion of the European Court for Human Rights in the case De Telegraaf (Dutch paper) vs. The Dutch State. In a recent ruling of the national Dutch Supreme Court, however, the right or protection of journalists’ sources is considered more important than the right to fair trial. Dutch lawyer Thomas van Vugt discusses the case.

Paper publishes critical article

In this case the plaintiff, a notorious local politician, who was the subject of a critical article in aforesaid paper, sued a local newspaper. The journalists of the article had quoted some anonymous people who dealt with the plaintiff in the past. They described the plaintiff as a “psychological terrorist”. The plaintiff sued for damages due to breach of integrity.

Wrongful act by paper?

The question whether the newspaper could be held liable for damages, depended on whether the paper had acted wrongfully. Did the journalists have a (legal) justification for using the phrase “psychological terrorist”? The paper had to provide evidence that the quoted phrase was actually used by people. Hereto a witness was called upon the stand that testified under oath that he was present when another person called the plaintiff a “psychological terrorist”. When the plaintiff’s lawyer asked the witness about the name of this person, the defendant’s lawyer objected. According to the defendant, revealing the identity of this source would violate the right to journalists’ source protection.

Supreme Court: Conflict of fundamental rights

The Supreme Court agreed with the defendant and did not allow the witness to answer the plaintiff’s question. The Court considered that in case there are two conflicting fundamental rights: the right of freedom of speech and the right to a fair trial. The Court found that there were insufficient grounds to set aside the right of freedom of speech. Although source protection is not included in the Dutch constitutional right of freedom of speech, the journalists are protected by article 10 of the European Convention of Human Rights. In this latter article the right to freedom of speech is granted and the journalists’ source protection arises from this article.

European Court: Effective protection for journalists

This ruling of the Supreme Court confirms the case law of the European Court on this matter: the scope of article 10 of the European Convention of Human Rights should be great enough to ensure effective protection. Therefore it should be possible that in case of more than one source, the source that does not mind to testify cannot be forced to reveal other sources’ identity. This would undermine adequate protection of the journalists.