CEDH · CASELAW;CLIN;ENG — 19 janvier 2016

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Turkey - 49085/07 Judgment 19.1.2016 [Section II] Article 10 Article 10-1 Freedom of expression Search and seizure operation conducted to identify journalistic source: violation Facts – In April 2007 the weekly magazine for which the six applicants worked published an article based on documents classified as “confidential” by the general staff of the armed forces, which revealed, inter alia , a system for assessing press editors and journalists introduced by the general staff with a view to excluding journalists assumed to be “hostile” to the armed forces from certain invitations and activities. Following a request for an investigation by the Chief of Staff, the military court ordered a search of the magazine’s premises in order to seize the documents that had allegedly been transmitted to the editor in chief, with a view to identifying the whistle-blowing State employee. The electronic files stored on 46 computers located on the magazine’s premises were copied onto external disks that were retained by the prosecutor’s office. Law – Article 10: The search carried out in the applicants’ workplace and the seizure of their data amounted to an interference in the exercise of their right to freedom of expression. This interference was prescribed by law and pursued the legitimate aim of preventing the disclosure of confidential information. The Court had therefore to determine whether the impugned measure had struck a fair balance between, on the one hand, freedom of expression and the freedom of the press –   which included the protection of journalists’ sources and protection of whistle-blowers employed by the State   – and, on the other, the protection of confidential data belonging to State bodies. (a)     The public interest in having information disclosed and having the sources of that information protected   – The fact of holding files in which journalists were classed according to their political leanings, with a view to excluding certain of their number from the dissemination of information of public concern pertained to the public’s right to receive information, which was one of the main rights provided for by Article   10 of the Convention. It was therefore beyond doubt that the points of view expressed and the content of the documents disclosed in the contested article were likely to contribute to the public debate on the armed forces’ relationship with general policy. The fact that the authorities had transferred the data stored on the journalists’ work computers to external disks could deter any potential sources from assisting the press in informing the public about questions concerning the armed forces, even where these related to matters of public interest. The investigation was aimed at identifying those responsible for the leak and bringing about their arrest. In protecting their sources of information, the applicants were thus protecting the State employees who had acted as whistle-blowers. Although the content of the documents disclosed by the presumed whistle-blowers was such as to contribute to public discussion, Turkish legislation contained no provisions concerning disclosures by members of the armed forces with regard to potentially unlawful acts committed in their workplace. It followed that the applicants could not be accused of having published the information received by them without waiting until their sources and/or the whistle-blowers had raised their concerns through the internal chain of command. (b)     The national authorities’ protected interests   – The case file did not reveal why the documents referred to in the article had been classified as “confidential”. Thus, it was not alleged that the style of the contested article or the date of its publication could have created difficulties such as to cause “considerable damage” to the State’s interests. The public interest in the disclosure of information describing questionable practices on the part of the armed forces in the area of freedom to receive information was so important in a democratic society that it outweighed the interest in maintaining public confidence in that institution. (c)     Review by the national courts – Given that the military courts had not verified if the “confidential” classification of the documents in question was justified, and had not balanced the various competing interests in the case, the formal application of the concept of confidentiality to the documents from military sources had prevented the domestic courts from reviewing whether the interference had been compatible with Article 10 of the Convention. (d)     Conduct of the applicants – There were no problems with the form of publication. In addition, the applicants, in their manner of presenting the subject, had respected its importance and seriousness, without using stylistic effects that were likely to divert the reader from an objective provision of information. They had had no intention other than to inform the public on a topic of general interest. (e)     Proportionality of the interference   – The search of the magazine’s premises and the transfer to external discs of the entire content of the computers and their storage by the prosecutor’s office had undermined the protection of sources to a greater extent than an order requiring them to reveal the identity of the informers. The indiscriminate retrieval of all the data in the software packages had enabled the authorities to gather information that was unconnected to the acts in issue. This intervention was likely not only to have very negative repercussions on the applicants’ relationships with all of their sources, but could also have a serious chilling effect in respect of other journalists or other whistle-blowers employed by the State, and could discourage them from reporting any misconduct or controversial acts by public authorities. It followed that the intervention had been disproportionate to the aim pursued. Having regard to the foregoing, and especially to the importance of freedom of expression with regard to matters of public interest and the need to protect journalistic sources in this area, including where these sources were State employees who had observed and reported potentially questionable conduct or practices in their workplaces, the Court, having weighed up the various interests at stake and in particular the confidentiality of military affairs, held that the interference with the applicants’ right to freedom of expression, especially their right to impart information, did not meet a pressing social need, had not been proportionate to the legitimate aim sought and, in consequence, had not been “necessary in a democratic society”. Conclusion : violation (unanimously). Article 41: sums ranging between EUR 850 and EUR 2,750 in respect of non-pecuniary damage.   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. 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