Judgment of the Supreme Court, 11 July 2008 (Telegraaf/Staat)
In January 2006 the De Telegraaf-reporters Joost de Haas and Bart Mos gained access to state secret files of the Dutch General Intelligence and Security Service (AIVD), which would be circulating in criminal circles. The information relates to an investigation in the second half of the 1990s into the criminal organization around the notorious Mink K. and into possible corruption within the judicial investigation authorities. The reporters wrote a number of articles on the subject. Before publication they had sent the AIVD copies of the state secret files.
In May 2006 the journalists found out that the AIVD had monitored and observed them since January and had requested telecommunications and print data. The journalists, De Telegraaf and the Dutch Association of Journalists and the Dutch Society of Editors-in-Chief initiated preliminary relief proceedings against the State, responsible for the AIVD. They demanded that the State be prohibited from using the special powers of the AIVD against the journalists and that the information that was already obtained be destroyed.
Remkes was the Minister of Internal Affairs at the time and as such responsible for the AIVD
Weighing of Interests: State Security As Opposed To Free Access to Information and Privacy
Although in the proceedings the State took the position that, on the basis of the Intelligence and Security Services Act 2002, it can neither confirm nor deny that the AIVD has used special powers against the journalists, the Court in preliminary relief proceedings was of the view that the journalists made it sufficiently plausible that that indeed occurred.
The journalists argued that the AIVD’s actions are an unauthorized infringement of their privacy within the meaning of Article 8 of the ECHR and the free access to information arising from Article 10 of the ECHR and the protection of journalistic sources based thereon. Because they are only a middleman and cannot themselves be regarded as targets of the AIVD investigation, the journalists are of the opinion that the AIVD in any case does not have the right to use special powers against them.
The Court in preliminary relief proceedings ruled that there is indeed an infringement of Articles 8 and 10 of the ECHR, but this does not necessarily mean that an investigation by the AIVD is never allowed, regardless of the circumstances. The protection of journalistic sources is not absolute. An infringement can be justified if it is provided by law and necessary in a democratic society. The principles of proportionality (the means are proportional to the purpose and do not go beyond what is necessary) and subsidiarity (there were no other means available) must be taken into account in that respect. In the opinion of the Court in preliminary relief proceedings these latter requirements were not met. Heavier indications would be necessary for the involvement of the journalists in the dangers as meant in the Intelligence and Security Services Act than were present in this case. The Court in preliminary relief proceedings allowed the claims of the journalists in a judgment of 21 June 2006.
The State lodged an appeal. In a judgment dated 31 August 2006 the Court of Appeal, contrary to the Court in preliminary relief proceedings, ruled that the requirements of proportionality were met. The objective of the State is “to prevent the dissemination of the state secrets at issue by tracing the leak [within the AIVD] and the investigation, possibly also to protect the life of others, of the consequences of the disclosure of the state secrets at issue”. And although the Court of Appeal regarded the importance of the protection of journalistic sources as serious and fundamental in a democratic society, the Court of Appeal ruled that the infringement thereof was in reasonable proportion to the objective.
The Court of Appeal also thought that at the start of the investigation the requirement of subsidiarity was met. But this changed when the AIVD – as appears from official reports – caught sight of another person. From that moment on the AIVD should have ceased its investigation against the journalists. For this reason the Court of Appeal maintained the order imposed by the Court in preliminary relief proceedings. Furthermore, the Court of Appeal left it to the Supervisory Commission of the AIVD to decide upon what to do with the information obtained.
The journalists appealed to the Supreme Court, but the Supreme Court rejected their appeal and upheld the judgment of the Court of Appeal. This means that the AIVD practice in this case for the most part is now approved by the Supreme Court. I fear that the result thereof could be that in future cases the AIVD may use its special powers against journalists without having much more of a concrete objective than basically “national security”.
“Interest of National Security” in Times of Fear of Terrorism
I find it hard to avoid the impression that the AIVD did not take the protection for journalists’ sources very seriously, or at any rate that it thought itself superior thereto and chose the easiest path. After all, what was more obvious than to begin their investigation from the source, i.e. the journalists? In the proceedings the State – while relying on the Intelligence and Security Services Act – behaved mysteriously. The State gave no factual information and expressed itself in commonplaces such as “national security”, “prevent (further) dissemination of state secrets” and “security of AIVD sources and other parties concerned”. The Court in preliminary relief proceedings, unlike the Court of Appeal and the Supreme Court, did not settle for that, which in my view is correct. Was this far-reaching infringement in the year 2006 of the protection of journalistic sources really necessary? I dare to wonder, taken into account that the AIVD documents concerned covered an old investigation from the second half of the 1990s, and had probably already circulated in criminal circles since 2002.
The journalists are considering to file a complaint with the European Court of Human Rights in Strasbourg. It will be interesting to see whether in these times of fear of terrorism the Court will dare to take a critical stand in matters of “national security”.