'A shocking denial of justice' to journalists

By Jon Slattery

Journalists’ hopes of being able to protect their sources have been dealt a blow in the European Court of Justice.

Investigative reporter Hans-Martin Tillack has lost his challenge
against the right of the European Commission to inspect files, computer
disks, email records and notebooks, which were seized in police raids
on his home and office in Belgium a year ago.

Tillack, a former
Brussels correspondent for Stern, published in 2002 a series of exposés
on fraud within the Commission and its statistical arm, Eurostat, based
on internal documents.

Belgian authorities seized the material as
part of their investigation into allegations against Tillack by the
EC’s anti-fraud office, Olaf. In particular, Olaf claims Tillack bribed
officials for information – allegations he denies.

Federation of Journalists general secretary, Aidan White, said: “This
case illustrates just how inadequate is protection for journalists. The
Commission makes unsubstantiated allegations against a reporter and
then gets access to his confidential files, which potentially
compromise anyone who has talked to him. It is a shocking denial of
justice to journalists and their sources.”

Media litigation
partner Dan Tench from Olswang told Press Gazette the European Court of
Justice had taken a very narrow view in its ruling. “The court said all
Olaf had done was send a notification to the Belgium authorities, and
it was they who had taken the steps to take away the documents. You
might think it a bit rich to say, ‘It’s not us – we only sent the
notification. They didn’t have to do anything; it’s purely a domestic

Tillack also sought an order restraining the EC from
receiving the material seized in the raid. But Tench said: “What is
astonishing about the judgment is that head of claim was not considered
at all. The whole action is considered solely in relation to the
notification. It is not addressed in the judgment anywhere.

decision didn’t rest on a balance of the interests of freedom of
expression against the ability to investigate leaks properly.”

the judgment, Tench advised: “If you are a journalist investigating the
European Commission and you receive information that might disclose a
source, take that information to a jurisdiction where there is proper
protection of sources. For example, bring it back to the UK, where we
do have some – though some think not adequate – protection of sources.”

added: “It is slightly dismaying that the European Court of Justice
seems to have shown no particular appetite for the protection of
sources in a case where you have allegations of corruption against the
EC. It gives one an uneasy feeling. It is the sort of case where you
think sources ought to be protected and information not handed back to
the very body that is subject to the allegations.”

Tillack plans to take Belgium to the Court of Human Rights in Strasbourg for the return of his documents.

EFJ said recent changes to Belgian law that enhance protection for
journalists’ sources would avoid cases similar to Tillack’s in future.

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