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06.10.2017

Norwegian journalist was right to protect her source - despite the source’s bad faith

by Emil Weber

Fining a Norwegian journalist for refusing to provide evidence on the source of information amounted to violation of freedom of information on insufficient grounds, the European Court of Human Rights (ECtHR) ruled on Thursday. That is despite the claims of a convicted insider trader that he was the source. 

Journalist was right to protect source Tore Sætre, Hausmanns bro Akerselva Atrium (133059), CC BY-SA 4.0

Ms. Cecilie Langum Becker, working for the online Dagens Næringsliv (DN) newspaper ( it means ‘Business Daily’), had received a faxed letter in August 2007. It gave the impression that “it had been written on behalf of a number of bond holders who were seriously concerned about the (Norwegian Oil Company-DNO’s) liquidity, finances and future”. The following day, the reporter published a story based on the letter which was headlined “Fears of DNO collapse”. Two days after the story was published, the price of DNO stock fell by 4.5%.

A DNO bond holder was convicted in March 2013 and sentenced to eighteen months imprisonment for market manipulation and insider trading. The day he had acquired the bond, he asked a lawyer to draft the letter, which in fact represented only himself and not any other bond holders. During the investigations and trial, he admitted that he initiated the letter and sent it to the DN.

The reporter was summoned as a witness. She revealed that the letter was received via fax at a specific time. But she refused to give evidence about her presumed contacts with the bond holder who was suspected for using the reporter as a tool. The City Court of Oslo’s position was that she was obliged to make a statement. The prosecutor had said that the “case was sufficiently revealed” even without Ms. Becker’s statement, although her appeal against the obligation to provide evidence was later refused by the Borgarting High Court.

Journalist gets her money back

Due to her refusal, Ms.Becker was fined 3,700 Euros by the Supreme Court for an “offence against the good order of court proceedings” in 2012.

The ECtHR’s Fifth Section ruled on Thursday, however, that there was a violation of the freedom of expression for insufficient reasons against Ms.Becker and decided to reimburse her the amount she had paid as the fine.

The court said that journalists’ right to protect their sources could not be revoked even when the source clearly acts “in bad faith with a harmful purpose”.

It further said that Ms. Becker’s refusal to provide evidence did not at any point in time hinder the investigation of the case. “Neither the City Court’s nor the High Court’s judgements against (the bond holder) gives any indication that (Ms.Becker’s) refusal to give evidence caused any concern to those courts as regarded the case or the evidence against (the bond holder)… In the present case, the source’s harmful purpose (towards Ms. Becker)…carried limited weight at the time when the order to testify was imposed”, the judgement said.

The court reiterated its position that “a chilling effect will arise wherever journalists are seen to assist in the identification of anonymous sources”.

“While it may be true that the public perception of the principle of non-disclosure of sources would suffer no real damage in this situation…, the Court considers that the circumstances in the present case were not sufficient to compel the applicant to testify”, the judgement said.

Case of Becker v. Norway, application no. 21272/12). 5 October 2017

A critical analysis of Becker v. Norway written by Prof. Dr. Dirk Voorhoof published at Strasbourg Observer is available here "Robust protection of journalistic sources remains a basic condition for press freedom"

 

 





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