Right to Freedom of Expression, Association and Religion

IV. Protection of Information Sources

The protection of journalistic sources is one of the most important guarantees of journalistic activities, determining the ability of the press to effectively exercise its function as a public watchdog as well as being responsible for public confidence in the media. The scandal concerning classified State Security Department information on Russia's threats to Lithuania being leaked to journalists, rearing its ugly head at the end of 2013, made it clear that the principal condition of journalistic work – the protection of the secrecy of the source – was only protected in theory, being very vulnerable in practice. 

After BNS ran a story at the end of October 2013 revealing that the State Security Department (SSD) had warned the heads of state and several committees of Parliament about possible informational provocations from Russia, a pre-trial investigation was launched on the suspicion that classified information had been unlawfully leaked to journalists.[1]  During the pre-trial investigation, the Vilnius District Court, seeking to determine the identity of the person responsible for leaking the classified SSD note on the potential informational provocation organized by Russia against the President of Lithuania,[2] ordered the journalist to reveal her source[3] and also mandated a search of her house, as well as the seizure of the computers at the editorial office.[4]

After examining the complaint of the BNS journalist, the Vilnius Regional Court admitted that both the obligation to disclose the source of information and the mandate for the search were unlawfully ordered by the lower court, noting that such measures may only be used as a last resort – when all other means have been exhausted.[5] Despite the reasoning of the court, there were attempts to interrogate the journalist on the source of her information in another case before the Vilnius District Court. While the courts were interpreting the legality and proportionality of these measures, it became apparent almost all of the BNS journalists had been wiretapped.[6]

The protection of journalistic sources is one of the most important guarantees of journalistic activities, determining the ability of the press to effectively exercise its function as a public watchdog as well as being responsible for public confidence in the media.

An order by the court, requiring a journalist to reveal the source of their information, is not a common Court practice.[7]  However, the confidentiality of the source as well as the journalist's right[8]  and professional duty to keep the source secret[9] may be breached by making use of other secretive procedural coercive measures – mandating a search, seizure of work or communications devices, secret surveillance, wiretapping of journalists.[10]  If these procedural measures are used on the journalist without justification and disproportionately, it may not only lead to a violation of his privacy, but may also reveal the sources of information available to that journalist.[11] In this situation, the further activities of the journalist can become very vulnerable and unreliable.

The use of secretive procedural measures, not just wiretapping, and its frequency is a serious human rights problem in Lithuania. When applying these mechanisms, there must be a very strong argument for suspecting that a person has committed not just any crime, but a very serious crime. As such, considering the special legal status of journalists in society, the disproportionate and unjustified use of procedural coercive measures against a journalist who is not even a suspect at the pre-trial investigation presents a double problem.

The use of other secretive procedural measures, not just wiretapping,[12] and its frequency is a serious human rights issue in Lithuania. When applying these mechanisms, there must be a very strong argument for suspecting that a person has committed not just any crime, but a very serious crime.[13] As such, considering the special legal status of journalists in society, the disproportionate and unjustified use of procedural coercive measures against a journalist who is not even a suspect at the pre-trial investigation[14] presents a double problem.

The ECtHR has noted that ability of the investigating authorities to reveal information must be strictly limited to the disclosure of necessary data, since disclosing journalists' sources more than is necessary for the purposes of the investigation is contrary to their freedom of expression and the confidentiality of their information sources.[15] In cases concerning the disclosure of journalistic source, the ECtHR has constantly emphasized that the principle of proportionality must be adhered to – to ensure maximum confidentiality for the journalist's  sources and to restrict any unjustified spread of the information on the source revealed.[16] In addition, identification of a journalist's source not only threatens that journalist's freedom of expression, but also his privacy.[17]

On 10 July 2014 Parliament adopted amendments, previously initiated by the President,[18]  to the Law on Provision of Information to the Public[19] and the Code of Criminal Procedure[20], tightening the conditions under which journalists are obliged to disclose the source of their information or when they are subjected to coercive measures (provided for in the law) in order to reveal the source of their information. From now on these procedural measures may only be mandated by a reasoned court decision when no other measures to reveal the source are applicable or all measures have been exhausted, and the court will only be able to decide the issue  of whether to oblige the journalist to disclose the source of his information in a court hearing attended by the journalist himself, who will have access to the prosecutor's request.

Findings and Recommendations 

  • The protection of journalists' sources is directly linked to the status of journalists and indicates the level of media freedom in the country. Pre-trial procedures in 2013-2014 revealed the real situation of journalists in Lithuania together with their vulnerability.
  • The use of secretive coercive measures in journalistic activities must always remain an exception and regulated in a way so as not to compromise either journalist’s privacy or very important guarantees of journalistic activities. In addition, these measures should only be applied when all other means of revealing the source of information have been exhausted. Once the source of the information is disclosed, effective measures must be taken to ensure it is protected against further disclosure.

[1] "The Prosecutor General's Office has already established who could have leaked the secret note of the State Security Department (SSD) to BNS journalists. But the prosecutors will not be revealing the last name of the suspect for the time being", 15min.lt, 14 November 2013, http://www.15min.lt/naujiena/aktualu/lietuva/generaline-prokuratura-stt-tyrime-del-valstybes-paslapties-atskleidimo-jau-aisku-kas-nutekino-informacija-ziniasklaidai-56-385058

[2] Saulius Chadasevičius, "Higher court finds that the SIS search of a journalist's home and the judge's order to reveal the source were unlawful", 15min.lt, 3 December 2013, http://www.15min.lt/naujiena/aktualu/lietuva/aukstesnis-teismas-stt-krata-bns-zurnalistes-namuose-ir-teisejo-gedimino-viederio-nurodymas-atskleisti-saltini-buvo-neteiseti-56-389501

[3] "BNS: law enforcement pressure is unacceptable", sc.bns.lt, 8 November 2013, http://www.universitetozurnalistas.kf.vu.lt/2013/11/bns-teisesaugos-spaudimas-yra-nepriimtinas/

[4] Dainius Sinkevičius, "Journalist hounded by the prosecutors and the SIS interviewed in D. Ulbinaitė's case", delfi.lt, 5 November 2014, http://www.delfi.lt/news/daily/lithuania/d-ulbinaites-byloje-stt-ir-prokuroru-persekiotos-zurnalistes-apklausa.d?id=66309998

[5] Dominykas Griežė, "Court quashes ruling ordering a BNS editor to reveal her information source", alfa.lt, 3 December2013, http://www.alfa.lt/straipsnis/15167428/teismas-panaikino-nutarti-kuria-bns-redaktore-buvo-ipareigota-atskleisti-informacijos-saltini#ixzz3SPFaxugL

[6] "Officers listened in on almost all of BNS jouranlists' conversations", lrytas.lt, 18 June 2014, http://www.lrytas.lt/lietuvos-diena/aktualijos/pareigunai-klausesi-beveik-visu-bns-zurnalistu-pokalbiu.htm

[7] "LUJ president Dainius Radzevičius: demands to reveal sources of information - laziness and extreme measures", 15min.lt, 8 April 2013., http://www.15min.lt/naujiena/aktualu/lietuva/lzs-pirmininkas-dainius-radzevicius-reikalavimai-atskleisti-informacijos-saltinius-tinginyste-ir-krastutine-priemone-56-323036

[8] Law on Provision of Information to the Public, 2 July 1996, No. I-1418, Article 8, http://www3.lrs.lt/pls/inter3/dokpaieska.showdoc_l?p_id=478453&p_tr2=2

[9] Code of Ethics of Lithuanian Journalists and Publishers, 2005, Article 15, http://www.lrs.lt/apps3/1/2386_FDQOUEDY.PDF

[10] Dainius Sinkevičius, "Judge that mandated mass surveillance of journalists: "I would do the same today'", delfi.lt, 30 June 2014, http://www.delfi.lt/news/daily/lithuania/masiskai-zurnalistu-pokalbiu-klausytis-leidusi-teiseja-siandien-pasielgciau-lygiai-taip-pat.d?id=65151947

[11] 16 October 2013 ECtHR judgment in the case of Nagla v Latvia, application No. 73469/10, paragraph 82, http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-122374#{"itemid":["001-122374"]}

[12] Linas Jegelevičius, "Darius Petrošius, chairman of the Commission for Parliamentary Scrutiny of Operational Activities: "10 thousand people are under secret surveillance in Lithuania", 15min.lt, 21 March 2013, http://www.15min.lt/naujiena/aktualu/interviu/seimo-operatyvines-veiklos-kontroles-komisijos-pirmininkas-darius-petrosius-lietuvoje-slapta-klausomasi-10-tukst-zmoniu-pokalbiu-599-318299

[13] Ernestas Rimšelis, "Do we need to muzzle wiretapping?“, delfi.lt, 7 July 2014, http://www.delfi.lt/news/ringas/lit/e-rimselis-ar-reikia-apynasrio-telefoniniu-pokalbiu-pasiklausymui.d?id=65212375

[14] Vilnius Regional Courts, "Vilnius Regional Court allowed the appeals of BNS editors", 17 July 2014, http://www.vat.lt/lt/vilniaus-apygardos-teismas/naujienos_208/archive/vilniaus-apygardos-teismas-jhcy/p30.html

[15] 18 July 2013 ECtHR judgment in the case of Saint-Paul Luxembourg S. A. v Luxembourg, application No. 26419/10, http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-119055#{"itemid":["001-119055"]}

[16] 18 July 2013 ECtHR judgment in the case of Saint-Paul Luxembourg S. A. v Luxembourg, application No. 26419/10, http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-119055#{"itemid":["001-119055"]}.

[17] 18 July 2013 ECtHR judgment in the case of Saint-Paul Luxembourg S. A. v Luxembourg, application No. 26419/10, http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-119055#{"itemid":["001-119055"]}

[18] "President proposes amendments to protect information sources", lrt.lt, 14 November 2013, http://www.ve.lt/naujienos/lietuva/lietuvos-naujienos/prezidente-teikia-pataisas-padesiancias-apsaugoti-informacijos-saltini-1092727/

[19] Law Amending Article 8 of Law No. I-1418 on Provision of Information to the Public, 10 July 2014, No. XII-1016, http://www3.lrs.lt/pls/inter3/dokpaieska.showdoc_l?p_id=478089

[20] Law Amending Articles 55, 80, 80-1, 149 of and Including Article 150-1 in the Code of Criminal Procedure, 10 July 2014, No. XII-1017,  http://www3.lrs.lt/pls/inter3/dokpaieska.showdoc_l?p_id=478090&p_tr2=2