KKO:2021:19 - Right of a witness to refuse to answer questions by virtue of protection of journalistic sources

Diary number R2020/655
Issued on 24 March 2021
ECLI:FI:KKO:2021:19

Background and the issue before the Supreme Court

Following the publication of a newspaper article, a number of the newspaper’s employees were suspected of the criminal offence of disclosure of a national secret, allegedly committed by the publication of information that was to be kept secret by virtue of law or official order. It was also suspected that preparations for the publication of other articles containing similar information had been carried out in the newspaper and that such information had been relayed, delivered, or disclosed also among the editorial staff of the newspaper.

A, a journalist, had been questioned as a witness during the investigation; in this context, A had refused to answer four of the questions put to A. On the petition of the head investigator, the District Court had considered the grounds for A’s right of refusal. Before the District Court, A had invoked the right of a journalist to protect sources, the right to anonymous expression, and the right not to self-incriminate. The District Court had obliged A to answer three of the four questions. In contrast, the District Court had ruled that A could refuse to answer the fourth question by virtue of the right not to self-incriminate.

The issue before the Supreme Court was whether A had the right to refuse to answer questions 1–3 by virtue of source protection, the right to anonymous expression, or the right not to self-incriminate.

Applicable law and relevant considerations

Under chapter 7, section 8(1), of the Criminal Investigation Act, a witness shall truthfully and without concealment state what he or she knows of the matter under investigation. However, if the witness would have the right to refuse to testify in the criminal proceedings concerning the matter, in accordance with chapter 17, section 18, 20, 22(1) or 22(2), of the Code of Judicial Procedure, the witness has the said right also in the criminal investigation.

According to chapter 17, section 18(1), of the Code of Judicial Procedure, everyone has the right to refuse to testify to the extent that the testimony would subject him or her to the risk of prosecution or contribute to the investigation of his or her guilt. According to section 20(1) in the same chapter, the originator of a message provided to the public, and the publisher and the broadcaster referred to in the Act on the Exercise of Freedom of Expression in Mass Media, may refuse to testify about who had been the source of the information in the message or about who had prepared a message provided to the public. Again, under section 22(2) in the same chapter, a person who has learned information referred to in section 20(1) while in the service of or otherwise as an assistant to a person referred to in the said provision has the corresponding right to refuse to testify as that person.

Under chapter 7, section 9(1), of the Criminal Investigation Act, if a witness obviously knows of a circumstance that is important for the determination of guilt and he or she refuses to reveal it even if he or she may be obliged to reveal it, the question of the grounds for refusal shall on the request of the head investigator be examined in court. The questioning of the witness shall be conducted in court if there is no lawful justification for the refusal. The Supreme Court noted that this case was not about the overruling of the right of refusal, but rather about the extent of the right of refusal. The provisions in chapter 7, section 9, of the Criminal Investigation Act were primarily applicable to the overruling of the right of refusal, but they were to be taken into account also when the court considered the extent of the right of refusal.

The right of a journalist not to disclose a source is protected as part of freedom of expression under section 12 of the Constitution of Finland, Article 10 ECHR, and Article 19 of the International Covenant on Civil and Political Rights.

The Supreme Court referred to the established case-law of the European Court of Human Rights, according to which the protection of journalistic sources is one of the basic conditions for press freedom (e.g., Goodwin v. UK, Grand Chamber, 27 March 1996, para. 39 and Financial Times Ltd and others v. UK, 15 December 2009, para. 59). According to the Court of Human Rights, the concept of source has a broad definition. It means any person who provides information to a journalist. Information identifying a source, in turn, means any information that is likely to lead to the identification of the source, including the circumstances of acquiring information from a source by the journalist, and the unpublished content of the information provided by a source (Nagla v. Latvia, 16 July 2013, para. 81).

In contrast, the European Court of Human Rights has not held that everyone who provides information to a journalist is a source in the traditional meaning of the term. For a person to be considered a source, and hence to be afforded protection, the Court has held that that person should have been freely assisting the press to inform the public about matters of public interest or matters concerning others (Nordisk Film & TV A/S v. Denmark, 8 December 2005, and Stichting Ostade Blade v. The Netherlands, 27 May 2014, paras. 62–65). To date, the European Court of Human Rights has not been asked to consider the extent of source protection in a situation where one journalist has alleged that another journalist on the same editorial staff is a protected source.

The Supreme Court cited also its own case-law emphasising the importance of freedom of expression and source protection (e.g., KKO 2019:112). In that case, concerning the criteria for prohibiting the seizure of journalistic materials, the Supreme Court held that the prohibition applies also in situations where the materials to be seized contain information on a journalistic source even if the source cannot be conclusively identified, as long as the information may contribute to the source being identified. The Supreme Court held that source protection is to be interpreted in a manner enhancing the freedom of expression and rather extensively than restrictively. If the answer to a question posed to a journalist as a witness may lead to the disclosure of a journalistic source, the journalist may invoke the right of refusal in order to protect the source.

In addition, the Supreme Court noted that the right to anonymous expression is a right separate from source protection, but that also its objective is to ensure that matters of interest to the public can be discussed in the media. That right covers anonymous expression, meaning information published anonymously or pseudonymously. However, there is no precedent regarding the extent of anonymous expression and whether a journalist has on this basis the right to refuse to name the other members of the editorial staff who have participated in the writing of an article published under the by-line of one journalist or several journalists.

Assessment and conclusions by the Supreme Court

The Supreme Court noted that it had been established that A had worked on at least one of the articles subject to the investigation. Accordingly, A could be assumed to know which other persons on the same editorial staff had worked on the articles or made decisions concerning them. The Supreme Court held that A obviously knew of circumstances that were important for the determination of the guilt of the suspects of the criminal offences under investigation.

The Supreme Court held that, in general terms, the purpose of source protection was to ensure that matters in the public interest could be discussed in the media. In an individual case, the purpose of source protection was to ensure the acquisition of information from an original source without that source being in danger of identification. The Supreme Court held that a source means primarily a person outside the media, in this case outside the editorial staff of a newspaper, who has wished to assist the paper in the publication of and discussion on a matter in the public interest. In contrast to what was alleged by A, journalists working on the same article as members of the same editorial staff did not thereby become sources for one another. That said, the identity of the other journalists working on the article could under certain circumstances be subject to source protection. If the identification of a journalist could lead to the identification of the original source, that information was information identifying a source and the journalist had in such a case the right to refuse to disclose the identity of the other journalist.

The Supreme Court held that the right to anonymous expression did not apply to the articles subject to the investigation, as they had been published under a by-line. In this case, the right to anonymous expression did also not cover the other journalists who had in some manner worked on the articles. Also in this case, their identity could still be protected as information identifying a source.

The Supreme Court then looked at the questions put to A and noted that A had not been asked about the original source or the identity of the source. The questions were nonetheless to be assessed in view of whether answering could lead to the disclosure of the source or sources of the articles. The point of the questions put to A was to determine how A self had participated in the writing of the articles and who else within the editorial staff had made decisions on the contents of the articles. A had not been asked to specify more closely what the contents of the articles had been before they had been worked by A or someone else, nor had A been asked who had written the drafts of the articles. In addition, it appeared that A had already answered certain questions on the same topics. It could not be held that, by answering the questions, A would provide information identifying the source or putting the source at risk of disclosure. Accordingly, the questions did not fall within the ambit of source protection and A did not have the right to refuse to answer them by virtue of source protection.

Thereafter, the Supreme Court assessed whether, by answering the questions, A would be in risk of prosecution for disclosure of a national secret. On this head, the Supreme Court noted that the offence of disclosure of national secret did not consist of the possession of secret information, but rather that punishability required the publication or dissemination of such information, or the unlawful acquisition of such information for purposes of publication or dissemination. Accordingly, mere work on articles containing secret information would not result in a conviction for disclosure of a national secret. There would also be no risk of prosecution merely by providing information on the identity of other persons working on the articles. The Supreme Court held that, by answering the questions, A would not give rise to a suspicion that A had acted in a manner prohibited by chapter 12, section 7, of the Criminal Code of Finland. Therefore, A did also not have the right to refuse to answer the questions by virtue of the right not to self-incriminate.

In conclusion, A did not have the right to refuse to answer questions 1–3 put to A. The case was returned to the District Court for A to be questioned. As regards possible more specific questions before the District Court, A did, however, have the right to refuse to answer questions where answering could disclose the source of the articles under investigation or lead to that source being identified, or put A under risk of prosecution for disclosure of a national secret.