December 27, 2013


December 2013

This statement of legalauthorities responds to reports that law enforcement authorities in Ukrainedemand that news organizations and journalists hand over unpublishedvideo and photographic images ofrecent street demonstrations. SpecificallyInternational Senior Lawyers Project was asked by Media Law Institute in Kyiv toprepare such a statement.

Democracies worldwiderecognize that the press plays an important watchdog role for the public and hatthis is a basic principle of democratic government. For the press to be free, itmust be independent of thegovernment, and be seen to be independent. The appearance and reality of independenceis threatened where the government demands that the press cooperate in itscriminal investigations. Theneutrality and independence of the press is prejudiced seriously when the governmentcommandeers the press to actas an investigative arm of the government. The pressis entitled tolegal protection against attempts by the government toenlist it to gather evidence. Suchgovernmental acts endanger the credibility of the press and its ability to gathernews and information.

United States

In the United States,where law enforcement authorities demand that a news organization hand over editorialmaterials, whether published or unpublished, the law guarantees procedural due processto insureprompt, impartial andeffective judicial control and oversight. This applies whether or not the materialsinvolve confidential sources or information. All editorial materials held by the pressare covered by this protection, and would include the kind of videoand photographic images which are at issue in Ukraine.

A news organizationwhich receives such a demand has the right to seek prompt judicial intervention beforecomplying with the demand. In the judicial proceeding the newsorganization challenges the legality, timing, scope and necessity for thehandover demand. The burden is then shifted to law enforcementauthorities to justify their demand, and they must provide competent evidence tothe court to prove all of the following elements: that a crime has been committed; thatthe demanded editorial materials arecritical, material and relevant to the investigation and prosecution of thecrime; that the law enforcement authorities have exhausted all alternative, non-mediasources toobtain the evidence; andthat the demand for materials is narrowly tailored as to particular time, placeand persons. The newsorganization exercises its right to rebut thegovernment in these judicial proceedings and, furthermore, enjoys theright to an appeal from a judicial order requiring it to hand over any ofits editorial materials.

As an additionalprotection against unwarranted and improper demandsagainst the press, the AttorneyGeneral of the United States mustapprove in advance any and allhandover or testimonial demands thatFederal law enforcement authoritiesintend to make against any journalist or news organization. The Department ofJustice must firstenter into negotiations with the press in order to accommodatetheneeds of both thegovernment and the press.

The highest court inthe State of New York has stated that “confidentiality or the lack thereofhas little, if anything, to dowith the burdens on the time and resources that wouldinevitably resultfrom discovery without special restrictions.” Thatcourt stated, “The autonomy of the press would be jeopardized if resortto the resource materials by litigants seeking to use the newsgathering efforts of journalists for their private purposes were routinelypermitted.”

European Court of HumanRights

In Sanoma UitgeversB.V. v. The Netherlands, Application 38224/03,Judgment 14 September 2010, thepolice were searching for an automobile suspected of being used in thecommission of a crime, and believed thatthe same automobile had latercompeted in an illegal road race. The applicant magazine had covered therace and had guaranteed anonymity to participants in the race. Actingunder a summons issued by the public prosecutor, the police demanded thatthe magazine hand over all of it sun published photographs of the race. Policewere present during the race and presumably could have made their ownphotographs. The police seized the photographs after the magazine objected anda judge mediated the disputein an advisory capacity, siding with thepolice. The editor of the magazinewas arrested and briefly detained while the parties continued the dispute.

The Grand Chamber foundthat the compelled handover of the magazine’seditorial materials violated Article10 of the European Convention on Human Rights. The Grand Chamberdescribed the threat posed by theintention of the police to raid thenewsroom if the magazine failed to comply with the summons. The absenceof established judicial controlwas fatal; the Court found a violation because of theabsence ofrequisite proceduralsafeguards.