Belgian journalist inspires new law

The entitlement of journalists to protect their sources has been one
of the fundamental rights of the UK media for many years, and a
much-prized one at that. You might assume that this same right is
available to journalists throughout Europe, particularly in Belgium.

That
country lies at the heart of the European community, which upholds the
Article 10 right to freedom of expression enshrined in the European
Convention on Human Rights. But you would be wrong.

In February
2002, Belgian journalist Hans-Martin Tillack wrote an article for
German news magazine Stern, which included details of a 46-page
confidential memorandum by the European Anti-Fraud Office (OLAF). Like
many journalists beforAe him, Tillack refused to identify the source
from which he had obtained the memo. OLAF subsequently announced in a
press release that it was investigating a claim that Tillack had bribed
an EU official to obtain the report.

Tillack vehemently denied (and still denies) this and asked OLAF to withdraw the allegation.

Despite
this, OLAF turned the matter over to the German and Belgian police. The
German authorities took the view that there was insufficient evidence
to take action, but the Belgian police decided to investigate whether
there had been a breach of professional secrecy. With no prior warning,
they arrived at Tillack’s home, handed him a search warrant and
searched his home and office, seizing computer hard drives, telephones,
bank records and many other papers. At that time, there was no law in
Belgium that allowed journalists to protect their sources.

The
European Federation of Journalists (EFJ) is campaigning to have the
charges against Tillack dropped. The journalist has also taken his case
to the European Court in a bid to annul the decision of OLAF to refer
complaints to the German and Belgian authorities.

Tillack argues
that this infringed the fundamental right of journalists to protect
their sources, and that it constituted a mal-administration that
damaged his personal and professional reputation. The case is ongoing.

Tillack
is supported not only by the EFJ but also by the International
Federation of Journalists (IFJ), which has lodged a formal statement
with the European Court in support of his case.

The ability of
journalists to protect their sources is one of the core principles upon
which press freedom is founded. As Aidan White, General Secretary of
both the EFJ and the IFJ, has stated: “This case is vital because it
concerns support for journalists everywhere in their fight for legal
cover when they put the authorities – even the most powerful in Europe
– under proper professional scrutiny.”

There have been several
proposals for legislation in Belgium over the years, but none was
adopted. However, the case of Hans-Martin Tillack seems to have brought
matters to a head. In 2004, a new proposal for a law on the protection
of journalistic sources was put forward and, after some modification,
was formally adopted by the Belgian Parliament on 17 March.

Although
it has yet to come into force, this legislation will grant journalists
the right to protect their sources and prevent them being compelled to
disclose any information, data or documents that would lead to the
identification of their sources. This includes the origin of the
information or the content of the data or documents, if that might lead
to the source being identified. The legislation will also allow
journalists the right to remain silent if called as a witness, and
expressly states that they will be protected against searches, seizures
and phone tapping. In addition, it will prevent them being sued for
illegal retention of stolen documents or for complicity in violation of
professional secrecy by a third party.

The only circumstances in
which journalists will be forced to identify their sources will be if
the requested information is of crucial importance in assisting in the
prevention of crimes that constitute a serious threat to the physical
integrity of any person, and only if there is no other way to obtain
the information.

This will give Belgian journalists far greater
statutory protection than is currently available to the UK media. Here,
section 10 of the Contempt of Court Act 1981 allows the courts to order
journalists to disclose their sources if they are satisfied that
“disclosure is necessary in the interests of justice or national
security, or for the prevention of disorder or crime”.

The new
Belgian law has, unsurprisingly, been widely welcomed by journalists
both in Belgium and internationally, and has been hailed as “a
landmark victory” for press freedom,by the EFJ.

Although it comes
too late to assist Tillack in his fight it should, when it comes into
force, do much to prevent other Belgian journalists meeting the same
fate.

Amali de Silva is a litigation lawyer with specialist media firm Wiggin & Co.

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