INTERNATIONAL LEGAL
RESEARCH GROUP
FREEDOM OF EXPRESSION AND
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I
NTERNATIONALL
EGALR
ESEARCHG
ROUP ONF
REEDOM OFEXPRESSION
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PROTECTION OF JOURNALISTIC SOURCESProtection of journalistic sources as one of the basic conditions for freedom ofexpression without which sources may be deterred from assisting the media ininforming the public on matters of public interest
The European Law
Students’
Association
International Coordinator
Antonia Markoviti
International Academic Coordinator
Bruno Filipe Monteiro
International Research Assistants
Håkon Sverdstad Bjørvik & Mariagiulia Cecchini
International Human Resources Coordinator
Jakub Čája
International Linguistics Editor
Mark O’Reilly
International Technical Editor
Lala Darchinova
International Academic Supervisor
Ms. Silvia Grundmann
Head of the Media Division in the Information Society Department of the Directorate General Human Rights and Rule of Law, Council of Europe
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F
OREWORD
Dear Reader,
The Final Report of the International Legal Research Group on Freedom of Expression - Protection of Journalistic Sources is the outcome of a year of effort and devotion. Approximately 300 people are the ‘owners’ of this work. It was indeed a highly demanding procedure for all the participants, since our wish to reach a satisfactory level of academic quality, made the whole process challenging – out of the initial 35 registered countries, 28 reach the academic requirements that were set this year. However, real effort is always rewarded and we believe that this international publication will constitute a strong asset in the CV of the participants, but - most importantly - we really hope that all this acquired knowledge has essentially helped the participants to understand thoroughly one of the biggest focuses of the Council of Europe and encouraged them to pay more attention on this topic and act concretely in the future to address – at least legally – these challenges.
Of course, the achievements of the International Legal Research Group would not have been reached without the valuable support and help from many individuals.
First and foremost, as the International Coordination Team, we would like to congratulate the National Research Groups for their extraordinary work. The result is based on the will and effort of the 28 participating countries, involving approximately 300 students and academics participating as Researchers, Coordinators, Linguistics Editors and Academic Supervisors. We would like to thank all of you, because this enormous achievement is now available to act as a valuable source of information for all of our fellow students abroad and of course for anyone interested in the topic.
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Indeed, the professional and academic contribution is very important for such kind of student activitities. Therefore, we would like to wholeheartedly thank Ms. Barbara Orkwiszewska and the Directorate of Communications of the Council of Europe. We are very grateful for your assistance. Furthermore, we would like to acknowledge the academic support provided by the Media Division in the Information Society Department of the Directorate General Human Rights and Rule of Law, and especially the Head and International Academic Supervisor, Ms. Silvia Grundmann. Specifically, we would like to express our huge gratitude to Ms. Christina Lamprou from the aforementioned department of the Council of Europe, without whom the project would not have been realised. Thank you very much for everything. Last but not least, we are also grateful to Dagne Sabockyte, Vice President for Marketing of ELSA International 2015/16 who contributed to the project in many ways during the year and especially technically.
We wish you a pleasant reading!
Thankfully yours,
Antonia, Bruno, Håkon, Mariagiulia, Jakub, Lala and Mark
International Coordination Team of the International Legal Research Group on Freedom of Expression - Protection of Journalistic Sources
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1.
W
HAT ISELSA?
ELSA is a non-political, non-governmental, non-profit making, independent organisation which is run by and for students. ELSA has 43 Member and Observer countries with more than 300 Local Groups and 42,000 students. It was founded in 1981 by 5 law students from Poland, Austria, West Germany and Hungary. Since then, ELSA has aimed to unite students from all around Europe, provide a channel for the exchange of ideas and opportunities for law students and young lawyers to become internationally minded and professionally skilled. Our focus is to encourage individuals to act for the good of society in order to realise our vision: “A just world in which there is respect for human dignity and cultural diversity”. You can find more information on
WWW.ELSA.ORG.
2. LEGAL RESEARCH GROUPS IN ELSA
A Legal Research Group (LRG) is one of the flagship projects of ELSA. It is a group of law students and young lawyers carrying out research on a specified topic of law with the aim to make their conclusions publicly accessible. Legal research was one of the main aims of ELSA during our early years. When ELSA was created as a platform for European cooperation between law students in the 1980s, sharing experience and knowledge was the main purpose of our organisation. In the 1990s, our predecessors made huge strides and built a strong association with a special focus on international exchange. In the 2000s, young students from Western to Eastern Europe were facing immense changes in their legal systems. Our members were part of such giant legal developments such as the EU expansion and the implementation of EU Law. To illustrate, the outcome of the ELSA PINIL (Project on International Criminal Court National Implementation Legislation) has been the largest international criminal law research in Europe. In fact, the final country reports have been used as a basis for establishing new legislation in many European countries.
The results of our more recent LRGs are available electronically.ELSA FOR CHILDREN (2012)
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together with, among others, Missing Children Europe. In 2013, ELSA was involved in Council of Europe's ‘No Hate Speech Movement’. THE FINAL REPORT resulted in a concluding
conference in Oslo that same year and has received a lot of interest from academics and activists in the field of discrimination and freedom of speech. The RESULTS OF THE LRG CONFERENCE, a
guideline, have even been translated into Japanese and were presented in the Council of Europe
and UNESCO! Last year, we organized Legal Research Group onSocial Rightsin cooperation
with Department of European Social Charter in Council of Europe. 28 National Groups contributed toFinal Report and the results are going were presented on a concluding conference in Strasbourg, where the Concluding Report of the whole research was finalised. In the same year with the current LRG a new big cooperation began with the International Labour Organisation (ILO) and a new LRG with the purpose of expanding the ILO LEGOSH Database. The concrete results will be published by ILO and will be available soon.
3.
W
HAT IS THEL
EGALR
ESEARCHG
ROUP ONF
REEDOM OFEXPRESSION
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PROTECTION OF JOURNALISTIC SOURCESThe topic of new LRG is Protection of Journalistic Sources.There have been a large number of cases in which public authorities in Europe have forced, or attempted to force, journalists to disclose their sources. The European Court of Human Rights has reiterated that Article 10 of the European Convention on Human Rights safeguards not only the substance and contents of information and ideas, but also the means of transmitting it. The press has been accorded the broadest scope of protection in the Court’s case law, including with regard to confidentiality of journalistic sources.
“Protection of journalistic sources is one of the basic conditions for press freedom. … Without such protection, sources may be deterred from assisting the press in informing the public on matters of public interest. As a result the vital public-watchdog role of the press may be undermined, and the ability of the press to provide accurate and reliable information be
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adversely affected. … [A]n order of source disclosure … cannot be compatible with Article 10 of the Convention unless it is justified by an overriding requirement in the public interest.” (Goodwin v. the United Kingdom, judgment of 27 March 1996, § 39).
The Council of Europe has found that violations are more frequent in member states without clear legislation. Moreover, in cases of investigative journalism, the protection of sources is of even greater importance. To shed light on this issue, ELSA has partnered with the Media and Internet Division of the Directorate General of Human Rights and Rule of Law in the Council of Europe to understand how journalistic sources are being protected in each Member-States.
Table of Contents
ELSA ALBANIA ... 8
ELSA AUSTRIA ... 55
ELSA AZERBAIJAN ... 109
ELSA BELGIUM ... 171
ELSA BOSNIA AND HERZEGOVINA ... 232
ELSA BULGARIA ... 287 ELSA CYPRUS ... 353 ELSA FINLAND ... 402 ELSA GEORGIA ... 454 ELSA GERMANY ... 500 ELSA GREECE ... 573 ELSA HUNGARY ... 618 ELSA IRELAND ... 668 ELSA ITALY ... 724 ELSA LATVIA ... 812
ELSA REPUBLIC OF MACEDONIA ... 886
8 ELSA NETHERLANDS ... 985 ELSA NORWAY ... 1092 ELSA POLAND ... 1148 ELSA PORTUGAL ... 1212 ELSA ROMANIA... 1280 ELSA RUSSIA... 1336 ELSA SPAIN ... 1416 ELSA SWEDEN ... 1487 ELSA TURKEY ... 1538 ELSA UKRAINE ... 1599
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ELSA ALBANIA
Contributors
National Coordinator and National Academic Coordinator
Sajmira Kopani
National Researchers
Gezim Spahiu Migena Kore
Paola Ibraj
National Linguistic Editor
Armando Bode
National Academic Supervisor
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1. Introduction
The freedom of expression constitutes one of the essential foundations of a democratic society.1
In this framework, with a particular importance is the protection of journalistic sources, as one of the basic conditions for press freedom. Therefore, the legal protection of this right, as it is affirmed in several international instruments on journalistic freedoms, deserves considerable attention within the domestic legislation of a country.
It is generally accepted that without such protection, sources may be deterred from assisting the press in informing the public on matters of public interest. As a result, the vital public-watchdog role of the press, as it is defined by the European Court of Human Rights,2 could be
undermined, and the ability of the press to provide accurate and reliable information be adversely affected.
Journalists in general, whether working for local, national or international media, routinely depend on non-journalists for the supply of information on issues of public interest. Some individuals serving as sources come forward with secret or sensitive information, relying upon the reporter to convey it to a broader audience. In many instances, anonymity is the precondition upon which the information is conveyed from the source to the journalist. This may be motivated by fear of repercussions which might adversely affect their physical safety or job security.3
In these circumstances, it is essential for journalists to be entitled to refuse the disclosure of both the names of their sources and the nature of the information provided in confidence. The protection of sources and their confidentiality is essential to journalistic practice, as it is very difficult for journalists to operate unless they can give a strong and genuine promise of confidentiality to their sources.4
Despite the clear advantages of the protection of journalistic sources, complicated situations may arise when the interests of journalists face the public interests and rights, mainly where this information is relevant to criminal or civil proceedings. In this meaning, differently from other professions such as the case of a lawyer, the protection of journalistic sources against disclosure does not constitute an absolute right which cannot be derogated from in light of specific situations. Therefore, guidelines and provisions in the domestic legislation must provide the extent to which journalists have this kind of ‘privilege’ to refuse divulging the identity of confidential sources.
1Jersild v. Denmark [1994] European Court of Human Rights Series A no. 298, p. 23, para. 31 2Goodwin v. the United Kingdom [1996] European Court of Human Rights. Series A no. 28957, para 39
3 Article 19 and Interights, ‘Briefing Paper on Protection of Journalists' Sources - Freedom of Expression Litigation Project’ [May
1998], https://www.article19.org/data/files/pdfs/publications/right-to-protect-sources.pdf accessed 05 May 2016
4Centre for Media Pluralism and Media Freedom “Protection of Sources – EU Member States Laws”
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The journalist is an important actor of media and therefore its position develops with the same progress as media itself. One can learn a lot about the journalist and the regulation found in the legislation with regard to the rights attributed to him, only by getting to know closer the situation and legal regulation of media.5
In this context, this research examines the legal situation regarding the protection of journalistic sources in the Republic of Albania, as one of the contracting states to the Council of Europe, with the obligation to guarantee the freedom of expression as stipulated by Article 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms and other international legal acts.
2. Does the national legislation provide (explicit or otherwise)
protection of the right of the journalists not to disclose their source of
information? What type of legislation provides this protection? How
exactly is this protection construed in national law?
The national media legislation in Albania has gone through considerable changes during the transition from a totalitarian regime to a democracy and still, nowadays, the media legal system is being approximated with national and international requirements and standards.
The legal reform of the media system started with the introduction of the Press Law in 1993, which was one of the first initiatives of the Government at the time, but this is still not sufficient. This legislative intervention was modelled after a western example (i.e. the German state of Westphalia), but failed to adjust to the Albanian context. As a result, the law on Public and Private Radio and Television, No. 8410, in 1998, was approved with a later Law on Audiovisual Media adopted in 2013.6 In 2007, Albania signed an Action Plan for media legal
reform with European Union (EU) and the Council of Europe, which together with the Organization for Security and Co-operation in Europe (OSCE) have participated in the media legislation reform through legal expertise and consultancy.7
Journalists benefit of the protection from several national sources in Albania. Apart from the above-mentioned laws, the Constitution also assures protection of speech and the freedom of expression.
5Artan Fuga, ‘The Four Challenges Faced by Albanian Media’, 15 February 2013,
http://en.ejo.ch/media-economics/challenges-albanian-media accessed 06 May 2016
6 Swedish Helsinki Committee for Human Rights, ‘European regulation and Albanian media legislation: A comparative
analysis of the main standards’
http://www.institutemedia.org/Documents/PDF/European-Albanian%20comparative%20analysis.pdf accessed 01 May 2016
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The Constitution of the Republic of Albania states that the freedom of the press, radio and television is guaranteed.8 Article 17 of the Constitution provides that the fundamental rights
(including the freedom of expression, freedom of the media and freedom of information) can be restricted by law, in the public interest or for the protection of the rights of others, while adding that such restrictions must be “...in proportion to the situation that has dictated it...” and“...in no case may exceed the limitations provided for in the European Convention of Human Rights.” In addition, the Law on Radio and Television also states that editorial independence is guaranteed by law.9
Article 10 of the European Convention on Human Rights (ECHR) does not explicitly mention the freedom of the press, but the ECHR has developed extensive case-law providing the press a special status in the enjoyment of the freedoms contained in Article 10.10 A component of this
article is the protection of journalists’ sources, which is considered very important for a democratic society.
The status of the European Convention on Human Rights in the Albanian legal system is reinforced by the fact that the Albanian Parliament has ratified the convention and its successive protocols. As such, these international instruments “constitute part of the internal legal system”
and even prevail, in case of conflict, over ordinary Albanian laws.11
According to article 159 (1) of Criminal Procedural Code, journalists or any other professionals are not obligated to testify on what they are aware of, if that is part of the professional secret, except in specific cases for procedural authorities. Additionally, no specific provision concerning journalists or their right to protect sources is found for information classified as State Secret Acts.12
The Code of Ethics of the Albanian Media (the material source of law) also offers a special protection for the sources of information possessed by journalists.13 This Code of Ethics was
drafted in 1996 and revised in 2006 with the initiative of the Albanian Media Institute, the main NGO in the country dealing with media training and policy, and the two main journalist associations: the Union of Albanian Journalists and the League of Professional Journalists. Nevertheless, even 20 years after its creation and the wide support of different organizations and
8 Constitution Law of the Republic of Albania, article 22
9 Law No. 8410 [On Public and Private Radio and Television], article 5
10 Monica Macovei ‘A guide to the implementation of Article 10 of the European Convention on Human Rights’, Council of
Europe, January 2014 http://www.echr.coe.int/LibraryDocs/DG2/HRHAND/DG2-EN-HRHAND-02(2004).pdf accessed 01 May 2016
11 Constitution, article 122: “1. Any ratified international agreement constitutes part of the internal legal system after
it is published in the Official Journal of the Republic of Albania. It is directly applicable, except when it is not self-executing and its application requires the adoption of law. 2. An international agreement ratified by law has priority over the laws of the country that are incompatible with it.”
12 Law n. 8391 (For the National Informative Service) 1999 [Per SherbiminInformativKometar] 13 Term used for the classification of sources of law
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institutions, this Code is not a binding act and its implementation relies on the willingness of journalists themselves.14
Although these national law provisions provide an implicit right for journalists not to disclose their sources of information, these provisions fail to give an implicit or explicit definition of a
“source” and “information identifying a source”, as set out in the Council of Europe Recommendation Nr. R(2000)7.15
3. Is there, in domestic law, a provision that prohibits a journalist from
disclosing his/her sources? How exactly is this prohibition construed
in national law? What is the sanction?
Journalist all over the world find it difficult to gain access to places and situations where they can report on matters of public interest and fulfil their role as reporters of truth and wrongdoings, if they cannot guarantee confidentiality of their sources. This is a common problem in Albania, because, if a source is not ensured anonymity, then journalists will not be able to report.
In the national legal system, there are provisions protecting professional secrecy.
As previously stated, Article 159 of the Criminal Procedural Code provides that journalists are not obligated to disclose the source of information they posses. However, if the information regarding the sources is essential to evidence the criminal offense, provided that this is the only way, the court can order the journalists to disclose their sources.
Additionally, according to the “Code of Ethics of Albanian Media”, journalists should not divulge the name of a person who has provided information on a confidential, unless the person has explicitly consented.16 The right of anonymity can be infringed in special cases where:
a) There are doubts that the source has intentionally distorted the truth;
b) There are references that the source is the only way to avoid serious and unavoidable damages;
c) The information is related with the planning of a criminal act.17
14Ilda Londo ‘Self-regulation and defamation’ Albanian Media Institute”, pg 5:
http://www.institutemedia.org/Documents/PDF/Self%20regulation%20and%20defamation.pdf accessed 01 May 2016
15 Council of Europe, "Recommendation No. R (2000) 7 of the Committee of Ministers to member states on the
right of journalists not to disclose their sources of information", appendix, definitions c. and d.
16 Ethical Code of Albanian Media, Albanian Media Institute 1996 [KodiEtikiGazetareve]
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According to the Article 17 of Law “On Right of Information”,18 the right of information can be
restricted in cases when it is necessary, proportional and if the information impairs the below-mentioned interests:
a) The right of a private life; b) Commercial secret; c) Copyright;
d) Patents.
It does not explicitly refer to journalists, but this can be interpreted as a way for journalists to disclose their sources for necessary cases, as mentioned in the above-stated article.
Different provisions provide cases when the breach of confidentiality may arise, but on the other hand there are no specific articles in the national framework establishing sanctions for the breach of confidentiality. The Statute of the Albanian Media Institute stipulates that a member of this association may be excluded if his/her activity is in contradiction with the obligations and the ethics of the Statute and his/her moral figure and activity seriously damages the reputation of the association.19 Therefore, sanctions imposed by this association are made only in certain cases
where the board of the association considers as an infringement of the principles imposed in its Statute. These sanctions can only affect membership of the association, by penalizing in a moral and ethical way, without any legal sanctions.
According to the law “for the Protection of Personal Information”20, journalists have to respect
the integrity of the person and the provisions envisaged in this law, since in case of infringement, Article 39 of this law provides the administrative sanctions for the misuse of the personal information.
Albanian lawmakers should adopt legislation that specifically establish that principle and bar judges from drawing negative inferences from journalist defendant’s refusal to disclose the identity of their sources.21
4. Who is a
“journalist”
according to the national legislation? Is it, in
your view, a restricted definition for the purpose of the protection of
journalistic sources? What is the scope of protection of other media
18Article 17. Law n. 119 (On the Right to Information) 2014 [Per tedrejten e Informimit ne RepublikënsëShqipërisë] 19Article 13
20Law N. 9887, 2008, changed with the law n. 48/2012
21The Cost of Speech, Violations of Media Freedom in Albania, Human Rights Watch, Vol. 14, No.5 (D), June 2002
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actors? Is the protection of
journalists’
sources extended to anyone
else?
Defining a journalist and journalism is both elusive and problematic. As journalism undergoes a profound shift toward the electronic, it is difficult to figure out who is covered by the term and crafting the definition too narrowly excludes certain speakers from the benefits afforded to journalists.22
In Albania, the term ‘journalist’ has a wide meaning, not explicitly defined in national legislation. Generally, a journalist is considered a person who has graduated in “Journalism” from the relevant faculty of any University in Albania.23 However, the media community considers a
journalist as anyone engaged in the process of newsgathering and reporting for written or broadcasting media. This is also evidenced by research that shows that only 53% of journalists have a degree in journalism.24
Additionally, self-regulation mechanisms like several journalists’ associations do not necessarily put any criteria related to the education as regards to the membership. For example, the Statute of Albanian Media Institute provides the criteria for who “will be accepted as a member of the association: every journalist older than 18 years who has been working for three consecutive years in any media entity…”25
The role and tasks of a ‘journalist’ are provided by the Code of Ethics of the Albanian Media Institute. According to this Code, “journalists have the right to obtain information, to publish and to criticize. Information should be truthful, balanced and verified.”26
Journalism is a function shared by a wide range of actors, including professional, full-time reporters and analysts, as well as bloggers and others who engage in forms of self-publication in print, on the Internet or elsewhere.27 With regard to the other media actors, Albanian legislation
does not provide any definition.
The protection of journalistic sources is guaranteed by Article 44 of the Law No. 8410 “On
Public and Private Radio and Television”, which states that “confidentiality of sources of information (including material gathered by journalists) is guaranteed. They are disclosed only in special cases provided by law.”
22 Greg Leslie, “Who is a journalist and why does it matter?”, [2009] pg.4
23 See: The Internal Regulation of “Faculty of History and Philology” , University of Tirana 24 Ramadan Cipuri , “Albanian journalist between the Professional Standards and external pressures” 25 Statute of Albanian Media Institute, Article 9
26 Para 3. Ethical Code of Albanian Media, Albanian Media Institute 2006 [Kodi Etik i Gazetareve]
27 UN Human Rights Committee 2011, 102nd session, General comment no.34, ICCPR, para 44
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Although Albanian Legislation does not provide an explicit provision with regard to protection of other media actors, in our view, the above article, used to imply an wide protection of sources of information not only to the journalist themselves but leaving it open for other media actors as well.
The right of journalists not to disclose their sources of information is included as a principle by the Law for Audiovisual Media in Republic of Albania, which provides that the audiovisual operators, are ruled by the principle of confidentiality of the sources of information.28
On the other hand, an implicit protection of the sources of information is provided by Law No. 119/2014 on “Freedom of Information” which states that the “freedom of information is restricted, if necessary, proportionate and if that information would violate professional secrecy guaranteed by law.”
From the above, it can be concluded that sources of information of journalists are generally protected, even though not clearly nor in a detailed manner.
5. What are the legal safeguards for the protection of journalistic
sources? How are the laws implemented? How are the legal safeguards
combined with self-regulatory mechanisms?
The protection of journalistic sources undermines the protection of information and journalists' independence, serving as a direct contribution and a guarantee to the quality of the information. In most countries where a law protecting journalistic sources is adopted, the number of cases incriminating journalists on this matter has decreased or can be more easily fought back at a legal level. In countries were no such law is adopted, journalistic sources are more often threatened.29
Regarding the legal safeguards on this issue, it can be concluded that there is no national law dealing with the issue of the disclosure of journalistic sources.30 However, as it was laid down
above, pursuant to article 159 of the Criminal Procedural Code - professional journalists cannot reveal information regarded as professional secrets, hence their sources. However, if the data is essential in proving the criminal offence and the source is the only way to prove this, the court can order the journalists to reveal their sources. In light of this provision, given the fact that the
28 Article 4. Law n. 97 (For Audiovisual Media in Republic of Albania) 2013, [Ligji per Median Audiovizive ne
Republiken e Shqiperise)
29 Anthony Bellanger from Jason N. Parkinson ‘Journalism in the Age of Mass Surveillance’[2014]
https://www.nuj.org.uk/campaigns/safeguarding-journalists-and-their-sources/ accessed 27 April 2016.
30 Ilda Londo ‘Self-regulation and defamation’ Albanian Media Institute, pg5:
http://www.institutemedia.org/Documents/PDF/Self%20regulation%20and%20defamation.pdf. accessed 01 May 2016
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disclosure of the source happens only during a testimony in criminal court proceedings, the information can be accessed only by the parties involved therein. The general rule provided in the Criminal Procedure Code is that the proceedings are open to the public, emphasizing the publicity of the hearing.31 Nevertheless, according to Article 340/1/c, which provides the cases
of closed hearings, the court decides to hold the court examination or some of its actions in camera when it is necessary to protect the witnesses or the defendant.32
On the other hand, the Criminal Code provides some sanctions and penalties in case of refusal, as laid out in the article 307 which states that: “the offender can be fined or imprisoned up to one year and if proven that the reason for refusing to testify is personal gain, the sentence of imprisonment can be up to three years.” In this framework, since the disclosure of the source is in light of an obligatory testimony, which is essential in proving a criminal offense, the witness (in this case the journalist) has no possibility to avoid this obligation.
From another perspective, there are no legal provisions regulating the relation between journalists and their sources in these cases. Journalists can only appeal to the Code of Ethics or their consciousness in finding out whether to reveal their source or not. The revised Code of Ethics contains a provision stipulating that journalists should not reveal their sources, unless they have obtained explicit consent.33
Albania does not have a unified piece of legislation regarding the regulation of media in general. There are totally different regulation regimes for print and electronic media. The print media operates in an almost total lack of legal regulation on press. Instead, it is subject only to regulation by competition and commercial laws. After the law on Print Media was repealed in 1997, as it was considered too restrictive and entirely inadequate to the Albanian context, the Law on Press was passed. However, it contains only two provisions that guarantee the freedom of press in a general and vague manner.34
On the other hand, the legal framework on the broadcasting activity in Albania is laid down firstly by the Law on Public and Private Radio and Television, adopted in 1997, and then by the Law on Audio-visual Media, adopted in 2013. According to the law in force, the main body responsible for the implementation of the law is the regulatory authority: Audio-visual Media Authority (AMA), which replaced the National Council of Radio and Television (KKRT). AMA is a public independent legal body which operates pursuant to the provisions of the mentioned law and the effective legislation in the Republic of Albania.
31 Article 339/1 of the Criminal Procedure Code: "The hearing shall be public otherwise it shall be null and void". 32 Article 340, Cases of closed hearings:
1. The court decides to hold the court examination or some of its actions in camera: c) when it is necessary to protect the witnesses or the defendant.
33 ibid. 34 ibid.
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In discharging its functions, the AMA must assure, among others, the preservation and support of democratic values regulated in the Constitution, especially those related to the freedom of speech.35
The AMA must also encourage the public service broadcasters to meet objectives in accordance with the provisions of this law. In doing so, the AMA has the competence to draft and adopt codes and rules of audio-visual broadcasts and other bylaws in implementation of the Law on Audio-visual Media. In the same time, the AMA has the right to monitor the implementation of the law by entities exercising their activity in this field and, in case of infringements, it may impose sanctions.36 Nevertheless, as a matter of fact this authority has never ventured into any
efforts to guarantee the implementation of these particular provisions so far.37
The recent huge technological developments in the area of media have increasingly complicated its supervision in the legal perspective. In that context, it is admitted that media self-regulation appears to be a solution to increase media accountability while offering more flexibility than state media regulation.38 In this framework, a self-regulation mechanism can be prescribed as a joint
endeavor by media professionals to set up voluntary editorial guidelines and abide by them in a process open to the public. By doing so, the independent media accept common responsibility for the quality of the public discourse, while fully preserving their editorial autonomy in shaping it.39
Even though there will always be a need for legal guarantees on the freedom of the media, just as legal definitions of the necessary restrictions are needed, however, to ensure that media is fulfilling its role as watchdog of governments (and not only), it needs as little state interference as possible. Self-regulation can help prevent unnecessary media legislation and provide an alternative to courts for resolving media content complaints.40 In contrast to formal and
bureaucratic regulation mainly by state and government, self-regulation refers to responsibilities assigned to media operators to implement by themselves or that are voluntarily chosen by them. Such rules often have the character of desirable goals, guidelines or principles, rather than fixed
35 Article 18 "Objectives of AMA's activity" of the Law n. 97 (On Audio-visual Media in Republic of Albania) 2013 [Për mediat audiovizive nëRepublikën e Shqipërisë]
36 Article 19 "AMA's Functions" Law n. 97 (On Audio-visual Media in Republic of Albania) 2013 [Për mediat
audiovizive nëRepublikën e Shqipërisë]
37 Ilda Londo ‘Self-regulation and defamation’ Albanian Media Institute, pg5:
http://www.institutemedia.org/Documents/PDF/Self%20regulation%20and%20defamation.pdf. accessed 01 May 2016
38 Adeline Hulin and Mike Stone ‘The Online Media Self-Regulation Guidebook’,[2013]
http://www.osce.org/fom/99560?download=true accessed 01 May 2016.
39 Miklós Haraszti ‘The Media Self-Regulation Guidebook’ Office of the OSCE Representative on Freedom of the Media,
[2008] http://www.osce.org/fom/31497?download=true: accessed 06 May 2016.
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or compulsory standards to be achieved. They are ‘policed’ either within and by the media organization itself or by some intermediate body representing public and industry interests.41
In this meaning, in Albania there are no specific media self-regulation mechanisms which address concretely the issue of protection of journalistic sources. There is a negative correlation between a lack of a Journalistic Code of Ethics and a possible self-regulation prospect in professional terms, producing flaws in institutional and democratic standards expected.42
The last attempt to change the situation was the draft law on Freedom of the Press which tried to provide provisions for the establishment of an Order of Journalists that would serve as a regulator of the media community. This was strongly rejected as it was considered a structure that must be established upon the free will of journalists and not initiated by Parliament, or legally bound to report to the Parliament. According to this bill, all journalists would be obliged to become members of this Order and to adhere to its regulation, a system modeled after the Italian system in this area.43 It was considered an excessive legal regulation, by the media
community at the time, which was keen to adopt a more self-regulatory approach instead of this kind of intervention by the state.
But, in fact, self-regulation so far in Albania has been almost inexistent.44 The two main
associations, the League of Albanian Journalists and the Union of Albanian Journalists, which remain extremely weak, have not made any notable attempts to raise awareness among journalists and organize them for their common good.45
The main code of ethics recognized by the media community in general, since the moment of its signing in 1996 and its revision in 2006, is the Code drafted with the initiative of the Albanian Media Institute to which we have referred above.46 It covers the usual areas intended to promote
responsibility in the daily work of journalists, such as the confidentiality of sources among others. The first Code was adopted in 1996 and although it was well-written by providing provisions which covers most of the problems faced by journalists, had as the main flow of this attempt to self-regulation the lack of an implementing mechanism that would supervise journalists' conduct in relation to the Code. In this framework, the main challenge of the new
41 Belina Budini ‘Ways to Establish Self-Regulation on the Part of the Albanian Electronic Media in Coherence with European
Union Prospects’ http://dspace.epoka.edu.al/bitstream/handle/1/1323/Ways%20to%20Establish%20Self-Regulation%20on%20the%20Part%20of%20the%20Albanian%20Electronic%20Media%20in%20Coherence%20wi th%20European%20Union%20Prospects.pdf?sequence=1 accessed 07 May 2016
42 ibid
43 Ilda Londo ‘Self-regulation and defamation’ Albanian Media Institute:
http://www.institutemedia.org/Documents/PDF/Self%20regulation%20and%20defamation.pdf accessed 07 May 2016.
44 ibid 45 ibid
19
Code of Ethics in 2006 was the establishment of a self-implementing mechanism. After long discussions, the work group drafted a statute which provided a body referred as the Council of Ethics, in a form of a registered association, since in the legal point of view, it guarantees the broadest representation. According to its statute, members of the Council can be natural or legal persons, media outlets, civil society organizations working on freedom of expression, journalists, freelancers, columnists, etc. Hence, the general principle is that membership is voluntary and unlimited, but a broad range of membership is clearly preferred in order to provide the greatest legitimacy possible.
In addition, two permanent commissions would be established within the Council of Ethics, one for print media and the other for electronic media. These would be the bodies that will examine the complaints regarding possible ethical violations. The public can also lodge complaints to the commissions of ethics, as long as the media they complain against are members of the Council of Ethics.47 Unfortunately, efforts to establish such a council of ethics, as a media self-regulation
in Albania, seemed to be merely an attempt, as far as this body is totally inexistent in the country. Beside the Council of Ethics as it was designed in its draft-statute, in July 2015 was formally established, by a number of journalists and with the support of the Council of Europe, a body named as the Council of Media. The purpose of this self-regulation mechanism is to guarantee the respect of the Code of Ethics by the actors in the entire media area, and to contribute to the freedom of media in Albania.48 The concrete results of this initiative are not yet evident and
notable, due to the short time of its establishment.
Besides the Code of Ethics, there have been some other sporadic initiatives to establish internal codes of ethics in some private media, such as "Spekter Group". As an illustration, the code of ethics of this company outlines how journalists should deal with their sources, cases when anonymity is allowed and other professional issues. The code is implemented by an ethics bureau, composed by one representative employed by the company.49
Nevertheless, the lack of the interest of the media owners to be involved in self-regulation development is evident. The professional media bodies in Albania do not adhere to syndicates or any other efficient professional organization and the competition between the media outlets is more important than their agreement upon the professional standards.50 Overall, there is a lack
of awareness so as to self-regulation principles and benefits.
Another eventual mechanism successfully proved as a means of achieving self-regulation in the media is the institution of the "news ombudsman". This media actor is considered as the conscience of the news reporting. In light of this development in the Western Europe, there is
47 Article 12. Draft Statute of the Association “Council of Journalism Ethics,” February [2006] 48 http://www.javanews.al/fomohet-keshilli-i-medias/ accessed 01 May 2016
49 http://www.shekulli.com.al/ accessed 01 May 2016
50 Zlatev O. "Media accountability systems (MAS) and their applications in South East Europe and Turkey” in Professional
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no tradition of an institutionalized news ombudsman in Albania, but the role of the ombudsman is occasionally taken by academic personalities and senior journalists related to specific events when they chose to have their say.51
On the other side, although there is no specific News Ombudsman, there is a general self-regulatory instrument such as the People's Advocate (Ombudsman) in Albania accessible by every person, without restrictions related to the profession. It is an institution designed, following the legislation of other countries of Europe, which have previously created such a mechanism. The main task is to defend the rights, freedoms and lawful interests of individuals from unlawful and incorrect acts or omissions of public administration bodies as well as third parties acting on its behalf. Its mission is the prevention of potential conflicts between public administration and individuals. The Ombudsman in Albania acts on the basis of the complaint or request submitted to his office. He also operates on his own initiative, for special occasions made public, but further must take the consent of the person concerned.52 It is not the
Ombudsman who decides directly himself to restitute the rights of petitioners, but he makes recommendations to remedy the violation of the right by a public administration body which has caused the violation. In cases where the relevant body does not respond to the recommendations of the Ombudsman, the latter may address gradually to higher bodies in a hierarchy up to the Assembly (Parliament) with a report proposing concrete measures for restitution of the violated right.53 The Ombudsman may not start or, if started, can terminate the investigation if the same
case has been decided or is being examined by the prosecution office or the court. In these cases the Ombudsman has the right to request information from those authorities. He has the right to request information or documents related to the matter under consideration, even if they are classified as state secrets.
51 Belina Budini ‘Ways to Establish Self-Regulation on the Part of the Albanian Electronic Media in Coherence with European
Union Prospects’ http://dspace.epoka.edu.al/bitstream/handle/1/1323/Ways%20to%20Establish%20Self-Regulation%20on%20the%20Part%20of%20the%20Albanian%20Electronic%20Media%20in%20Coherence%20wi th%20European%20Union%20Prospects.pdf?sequence=1 accessed 07 May 2016
52 Law n.8454 (Law on the People's Advocate in the Republic of Albania) 1999 [Per Avokatin e Popullit ne
Republiken e Shqiperise]
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6. In the respective national legislation, are the limits of non-disclosure
of the information in line with the principles of the Recommendation
No R (2000) 7? What are the procedures applied? Is the disclosure
limited to exceptional circumstances, taking into consideration vital
public or individual interests at stake? Do the authorities first search
for and apply alternative measures, which adequately protect their
respective rights and interests and at the same time are less intrusive
with regard to the right of journalists not to disclose information?
As a member State to the Council of Europe, the Republic of Albania has undertaken the commitment to the fundamental right to freedom of expression as guaranteed by Article 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms. Due to the importance of the protection of the confidentiality of journalists' sources for the media in a democratic society, national legislation should provide accessible, precise and foreseeable protection. It is in the interest of states, invoking the need for democratic societies, to secure adequate means of promoting the development of free, independent and pluralist media.
The domestic law and practice in Albania should and needs to provide for explicit and clear protection of the right of journalists not to disclose information identifying a source in accordance with Article 10 of the Convention and the principles established therein, which are to be considered as minimum standards for the respect of this right.54
In this framework, the protection of journalists' sources of information constitutes a basic condition for their work and freedom as well as for the freedom of the media in general.
In this perspective, in line with the principles of the Recommendation No R (2000) 7 of CoE, Albania has the obligation to bring them to the attention of public authorities and the judiciary as well as to make them available to journalists, the media and their professional organizations.55
As it is noted above, Albania does not have specific law (lex specialis) on protecting the right of journalists not to disclose their sources of information.
The Law on Audio-visual Media in the Republic of Albania provides only one subparagraph concerning this topic. Article 4.2.c, as a general provision elaborating fundamental principles of
‘audio-visual broadcasts’, mentions among others the principle of maintaining the secrecy of information sources.
54 Principle 1 of the Recommendation No. R (2000) 7 of the Committee of Ministers to member states on the right
of journalists not to disclose their sources of information
55 Principle 5 of the Recommendation No. R (2000) 7 of the Committee of Ministers to member states on the right
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Pursuant to the provisions of this law, the AMA which is the regulatory institution in the field of audio-visual broadcasts and their support services in Albania, has drafted and adopted the Broadcasting Code as a sublegal act regulating principles, rules and practices of broadcasting. The issue of journalists' information sources is addressed in only one line of this Code, in the Section 4 "Broadcasting of the Information Programs", where it is provided within a sentence that: "Journalists have the right not to disclose their sources of information".
In the framework of domestic acts providing the right of maintaining the secrecy of information sources, as it is mentioned above, the Code of Ethics adopted by the Albanian Media Institute, has no legal consequences meaning that it is not binding to journalists and other subjects from the legal perspective. Nevertheless, it sets out minimum standards and criteria for the activity of journalists in Albania. In the third section of this Code is regulated the issue of relations with sources, suggesting that journalists should not divulge the name of a person who has provided information on a confidential basis, unless consent has been explicitly given by the person concerned. According to this provision, the right to the anonymity may be breached only if the information in question relates to the planning of a criminal act.
On the other side, the only national law providing in the same provision the right of journalists to maintain professional secrecy and the respective limitation of this right, is the Criminal Procedure Code of the Republic of Albania. In Section I of Chapter II, named "Types of Evidence", of this Code is provided in the Article 159.3 the right of journalists to save the professional secretly.56
According to this provision, certain professionals, including journalists, may not be compelled to testify on what they know due to their profession, except in cases where they have the obligation to report to proceeding authorities (in light of Article 300 of Criminal Code "Failure to report a crime"). This is particularly applied to the names of persons whom professional journalists have obtained information from during the course of their profession.
Paragraph 2, which is also applicable to journalists, provides that when the court has reasons to believe that the claim made by these persons in order to avoid the testimony has no grounds, it orders the necessary verification. When such claims result unjustified, the court orders the witness to testify.
In this line, it is also provided specifically in the paragraph 3 that when the information is indispensable to prove the criminal offence and the truthfulness of the information may only be proved through identification of the source, the court orders the journalist to disclose the source of his information. In regard with this paragraph, for the limitation to be applied must co-exist two cumulative conditions. First, is the fact that the information taken by the source must be indispensable to prove a criminal act, and second, that there is no other way to prove the
23
truthfulness of this information, except through revealing the source.57 The legitimate interest in
the disclosure of the source sanctioned in this provision is the prevention of criminal acts, similar with the second paragraph of Article 10 of the Convention. In this provision, no distinction is made between offences or minor crimes and “major” or serious crimes. According to the Explanatory Memorandum of the Recommendation, only the prevention of the latter category can possibly justify the disclosure of a journalist's source.
With due regard to this provision, it is a positive step the fact that professional journalists, in line with principles set out in the Recommendation, are protected from the obligation to testify in a trial, in order to maintain their sources of information. What is important to notice is that the court is the sole authority which has the exclusive competence to decide whether this right shall be derogated or not. In our opinion, by giving this competence only to the court, it is guaranteed the essence of the right and provided the appropriate legal security for journalists. Furthermore, it is accomplished in the ratio of Principle 5.a of the Recommendation, which states that the motion or request for initiating any action aimed at the disclosure of information identifying a source should only be introduced by persons or public authorities that have a direct legitimate interest in the disclosure.
What might be problematic is the fact that in this provision is not provided any specific alternative measure with the intention of protecting journalists right not to disclose source of information, in order to be less intrusive to this right. It is completely at the discretion of the court to decide on the issue of protecting the journalist’s professional secrecy, search for and apply proportionate, alternative measures.
It is also not specified in the so-called procedure of verification, stated in paragraph 2, in case the court suspects that the journalist's claim to apply this protection has no grounds. In the light of this limitation, there is not a clear statement in which grounds would be a hypothetical suspect by the court. Nevertheless, it is widely acceptable that the presumption that the court is the most effective authority to protect and guarantee the right of journalists provided in the national legislation.
In addition, another guarantee provided by the Criminal Procedure Code, is the fact that the eventual disclosure of sources of information shall be made in a form of a trial testimony, which is generally given during the court proceedings, in the presence of the parties, both prosecutor and defendant. The interrogation of journalists as witnesses in the court proceedings cannot be made by prosecutor or police agents, in a different venue except the court.58
57 Artan Hoxha, Halim Islami and Ilir Panda: "Criminal Procedure", 2012
58 Article 157/1 "The duties of the witness": The witness is obliged to appear before the court, to observe its orders
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Another problematic area of the Albanian procedural law might be the fact that in Article 159, it has not implemented Principle 5.e of the Recommendation, which states that where journalists respond to a request or order to disclose information identifying a source, the competent authorities should consider applying measures to limit the extent of a disclosure, for example by excluding the public from the disclosure with due respect to Article 6 of the Convention, where relevant, and by themselves respecting the confidentiality of such a disclosure. Nevertheless, as in general court proceedings, even in this case the court has the discretion to decide whether it should exclude the public from the disclosure or not.59
It is encouraging the fact that Article 159 provides that the reveal of the source of information is the very last remedy applied by the court. It comes as a necessity only if there is no other way to prove an eventual criminal offence. In light of the other alternative investigative measures available in the Albanian national law, according to the Criminal Procedure Code, beside the testimony, the types of proofs include interrogation of the defendant,60 the confrontation,61 the
identification and recognition,62 experiments,63 expertise,64 material evidence and documents.65
These proofs are available only if they are taken by the legal means of searching evidence such as the examination, inspections, seizure and surveillance.66
On the other side, Albanian national legislation does not provide, in its legal system, the same protection for other persons who, by their professional relations with journalists, acquire knowledge of information identifying a source through the collection, editorial process or dissemination of this information, as it is stated in Principle 2 of the Recommendation.67 Even
they should equally be protected under the principles established therein, there are no provisions securing this principle. The knowledge of the source has to be acquired by these other persons in the framework of their ‘professional relations with journalists’. Secretarial staff, journalistic colleagues, printing staff, the editor or the employer of a journalist might have access to information identifying a source. It is therefore necessary to extend the protection to these persons in order to maintain the secrecy of a source towards third persons or the public, if they are not already covered by the definition of journalist under national systems of protection.68
59 Article 340, Cases of closed hearings:
1. The court decides to hold the court examination or some of its actions in camera: c) when it is necessary to protect the witnesses or the defendant.
60 Articles 166-168 of the Criminal Procedure Code 61 Articles 169-179 of the Criminal Procedure Code 62 Articles 171-175
63 Articles 176-177 64 Articles 178-186 65 Articles 187-197
66 Chapter III of the Criminal Procedure Code
67 Principle 2 of the Recommendation No. R (2000) 7 of the Committee of Ministers to member states on the right of journalists not to disclose their sources of information
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Within the scope of Article 159, falls only the one named as "professional journalist", without explaining what this term means. In order to exclude any misinterpretation or ambiguity, it would be relevant to modify and reword this provision by defining clearly the terminology used therein. Nevertheless, we consider that in this situation the term "professional journalist" should be interpreted by the court having regard to the case-law of the European Court of Human Rights.69 In the judgment of De Haes and Gijsels v. Belgium (27 February 1997, para. 55), for
example, the European Court of Human Rights extended the right not to disclose information identifying a source to an editor and a journalist alike.
7. In the Recommendation No R (2000) 7 the following principles
should be respected when the necessity of disclosure is stated: absence
of reasonable alternative measures, outweighing legitimate interest
(protection of human life, prevention of major crime, defence of a
person accused or convicted of having committed a major crime).
Under which criteria can the interest in the disclosure outweigh the
interest in the non-disclosure?
The right of journalists not to disclose their sources of information is part of their right to freedom of expression under Article 10 of the Convention which, according to the ECHR's interpretation, is binding on all Contracting States.
It is widely accepted that the right to freedom of expression and information constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and the development of every individual, as expressed in the Declaration on the Freedom of Expression and Information of 1982.
The "public interest" is an amorphous concept, which is typically not defined in access to information legislation. This flexibility is intentional. Legislators and policy makers recognise that the public interest may change over time and according to the circumstances of each situation. In the same way, neither does the law try to define categorically what is "reasonable."70
Courts need to balance the two public interests that stand in tension in journalist’s sources protection cases. A miscalculation of the public interest in these cases would cause the risk of moving away from the main intention. The assessment of the public interest should rely on a case-by-case basis. Whether the disclosure of a journalistic source will be deemed to be in the interest of the public outweighing the interest of the non-disclosure, this usually depends upon
69Goodwin v the United Kingdom [1996] European Court of Human Rights, para 34
26
the facts of the particular case. Anyway, there are some objective criteria which need to guide courts on deciding whether the disclosure is relevant or not.
The aim of the invoked Recommendation is also to set out the requirements for an adequate protection of the right of journalists not to disclose their sources of information, in order to safeguard freedom of journalism and the public's right of information from the media. The protection of the professional relationship between journalists and their sources is in this respect of higher importance than the actual value of the information for the public, as the ECHR has held.71 In this line, any disclosure of a source may have a chilling effect on the readiness of future
sources to provide journalists with information, irrespective of the kind of information provided by the source. The guidelines appended to this Recommendation therefore establish common principles for the right of journalists not to disclose their sources of information in the light of Article 10 of the European Convention on Human Rights.
In evaluating a violation of the Article 10 of the Convention, in accordance with paragraph 2, the Court needs to examine whether there has been an “interference” under this provision; whether this interference was “prescribed by law”, whether it pursued a “legitimate aim” and is
“necessary in a democratic society”.
Any restriction of the right of journalists not to disclose information identifying their source and of the public interest in the non-disclosure must be prescribed by law and based on a legitimate interest among the grounds provided for in the second paragraph of Article 10. It must be a legitimate intention to restrict the right to freedom of expression. Any limitation of this right must be truly necessary, in response to a pressing social need.
When evaluating whether a particular legitimate interest under this provision justifies the restriction of the right to freedom of expression, the Court applies a balancing test which determines whether a restriction is "necessary in a democratic society".72 Moreover, the disclosure must
accomplish its intention based on the public interest; otherwise it would loose the essence of this measure.
In the view of ECHR, there must exist a reasonable relationship of proportionality between the legitimate aim pursued by the disclosure and the means deployed to achieve that aim.
The concrete interest of the person or public authority in the disclosure of the source must be "sufficient to outweigh the vital public interest in the protection of the (...) journalist's source".73
Only exceptional cases where a vital personal or public interest is at stake might justify or be proportional to the disclosure of a source.
71Goodwin v the United Kingdom [1996] European Court of Human Rights para. 37 72Sunday Times v the United Kingdom [1991], European Court of Human Rights para. 50 73 ibid para 45
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According to the ECHR, there must be a careful balance between the disclosure and the non-disclosure of journalists sources, in order to protect the free press and hence the fundamental democratic right to right to freedom of expression.
In estimating the importance to be given in favor of disclosure there is a wide spectrum within which a particular case must be located. If the party seeking disclosure shows, for example, that his very livelihood depends upon it, this will put the case near one end of the spectrum. If he shows no more than that what he seeks to protect is a minor interest in property, this will put the case at or near the other end.
On the other side the importance of protecting a source from disclosure in pursuance of the policy underlying the statute will also vary within a spectrum. One important factor will be the nature of the information obtained from the source. The greater the legitimate interest in the information which the source has given to the publisher or intended publisher, the greater will be the importance of protecting the source. But another and perhaps more significant factor which will very much affect the importance of protecting the source will be the manner in which the information was itself obtained by the source. If it appears to the court that the information was obtained legitimately this will enhance the importance of protecting the source. Conversely, if it appears that the information was obtained illegally, this will diminish the importance of protecting the source unless, of course, this factor is counterbalanced by a clear public interest in publication of the information.74
In that context, the Albanian domestic legislation, and more concretely the Code of Criminal Procedure, as it is noted above, provides in the Article 159 that the disclosure of the sources of information is the very last remedy applied by the court. It comes as a necessity only if there is no other way to prove an eventual criminal offence. Thus, for the limitation to be applied the information taken by the source must be indispensable to prove a criminal act, and there must be no other way to prove the truthfulness of this information, except through revealing the source.
The legitimate interest in the disclosure of the source sanctioned in this provision is the prevention of criminal acts, similar with the second paragraph of Article 10 of the Convention, being in line with the criteria explained above. Nevertheless, as it is noted above, there is no distinction between offences or minor crimes and “major” or serious crimes, as it is set out in the Recommendation. There are also no specifications regarding the interest for certain crimes, except the fact that the court is the sole authority which has the exclusive competence to decide whether the disclosure shall be made or not.
In this perspective, it can be assumed that the disclosure of journalistic sources in Albania is only partially in line with the Recommendations and standards explained above.
