In 2021 and 2022, journalists of De Correspondent made a reconstruction of the Dutch policy on devices during the corona pandemic and the mouth masks deal of Sywert van Lienden. At that time, Van Lienden – together with the co-directors of his foundation – was a suspect of fraud, embezzlement and money laundering. On 25 March 2022, the journalists met three directors of the foundation.
It transpired later on that the Public Prosecuting Service had taped this conversation. The location where the meeting would be held had been equipped with recording devices in advance. The PPS asked the investigating magistrate for permission to tape the conversations. At that time, the PPS still thought that the three business partners would be seeing each other. The examining magistrate gave permission. On the eve of the meeting, the PPS found out that journalists would also participate. The Office for Financial, Economic and Environmental Offences of the PPS decided that the tapping could go ahead without informing the examining magistrate or requesting permission anew. After the conversations had been taped, the recordings were added to the case documents.
This is remarkable since tapping journalists is in breach of the right to protection of sources, which is protected in Article 10 of the European Convention on Human Rights, among others. Such a breach of freedom of the press is only permitted under specific circumstances. The right of non-disclosure must be interpreted broadly and reaches beyond mere protection of the identity of sources, as established case law shows. It includes, for example, data on the circumstances under which information was obtained from a source, and unpublished contents of the information that the source provided to the journalist. Moreover, the Dutch Code of Civil Procedure dictates that means of coercion (including telephone tapping) against journalists can only be deployed after the examining magistrate has granted permission.
Furthermore, the requirements of subsidiarity and proportionality apply. This means that a journalist may only be tapped as a last resort. For example, if the journalist may have essential information that may prevent a serious crime from being committed, and this information is not available via a different route.
After De Correspondent had submitted an earlier complaint, the PPS stated on 24 October 2023 that the tapping was not directed against journalists, but against the directors who were the subjects of a criminal investigation. Therefore, this tapping was permitted according to the PPS. De Correspondent then went to the civil court, where it claimed a declaratory judgment stating that the PPS had acted unlawfully by breaching the right of non-disclosure.
The Court of The Hague recently ruled that the PPS had indeed breached the right to protection of sources, but that this breach was justified in light of the criminal-law interest in fact-finding. According to the Court, the PPS did not have to request the express permission of the examining magistrate to tap the journalists, because the means of investigation was not directed against the journalists and because nothing was known at the time of the application about a (possible) participation by the journalists in the conversation. The Court also held that, because the directors had already been arrested as suspects in the criminal investigation, they needed not fear that, as a result of their contacts with the journalists, their identities would become known to the law enforcement agencies. The right to protection of sources must therefore be overridden by the criminal-law interest in fact-finding, according to the Court.
We believe that De Correspondent has very strong cards in appeal proceedings (if any). Firstly, the means of investigation may not have been directed against the journalists, but it was by no means an incidental catch. The PPS knew that it would tap an interview between the suspects and journalists. This is different from, for example, tapping the phone of a suspect who happens to call a journalist within that period. This is not altered by the fact that the investigation was not directed against the journalists; it was directed at tapping a conversation with journalists, and nothing else. The fact that the names of the suspects were already known does not seem to be a convincing argument either, because the right to non-disclosure applies also (according to established case law of the ECHR) if the name of the source(s) is known, as the Court indeed acknowledges. Finally, it seems that insufficient attention has been paid to the requirements of proportionality and subsidiarity. Although the mouth masks deal was a hot topic in society, we believe that there is crime of such a serious nature here as would justify the deliberate tapping of journalists. This means that in our opinion, the Court has judged too easily that fact-finding takes precedence here.
The importance of a free press as a matter of principle is much more important than the interest of the PPS in fact-finding in this case. The PPS already had tons of convincing evidence, as everyone has been able to read in the media. This action was not necessary for fact-finding purposes, while the crime was not of such proportions as would justify setting aside the freedom of the press. Journalists should not be tapped simply in order to serve a fact-finding mission; otherwise there would be no end to it.
