Norway V.

Becker

The European Court of Human Rights found that Norway had violated Article 10 of the European
Convention on Human Rights by ordering a journalist to give evidence about her contact with a source,
despite the fact the source himself had come forward and identified himself. The source (Mr. X) faced
prosecution for market manipulation and insider trading following the publication of an article that had
been based on information supplied by him. The journalist who wrote the article refused to answer any
questions about possible contact between her and Mr. X, relying on the right to protection of journalistic
sources. This was the first time the European Court of Human Rights had considered a case where the
source had intentionally come forward.

The fact of the case

Cecilie Langum Becker was a Norwegian journalist working for the online newspaper DN.no. On August
25, 2017, Ms. Becker published an article containing information received in a letter from a lawyer
expressing concerns about the liquidity of the Norwegian Oil Company (DNO). The letter gave the
impression that several bond holders of the company were behind it. Two days after the article was
published, the price of DNO stock decreased by 4.1%.

When questioned by the Financial Supervisory Authority, Mr. X confirmed that he initiated the letter
that was sent to Ms. Becker and that he was the source for the article. When Ms. Becker was questioned
by police, she refused to give additional information beyond the fact that she received the letter and
published the article. Criminal proceedings were brought against Mr. X for market manipulation and
insider trading.

Issue of the case

During the criminal trial against Mr. X, Ms. Becker was called as a witness but refused to answer
questions about her possible contacts with him. In February 2011, the City Court held that she had a
duty to give evidence in relation to the letter she had received. Her appeal against the order to testify
was rejected by the Borgarting High Court, which found that it was generally decisive whether the
source was known. The applicant's subsequent appeal to the Supreme Court was also rejected. Ms.
Becker was called as a witness in the appeal against the conviction of journalist Mr. X, but refused to
answer questions about her contacts with him.

Ms. Becker filed an application to the European Court of Human Rights, arguing that the order to give
evidence amounted to a violation of her right to freedom of expression. She was ordered to pay a fine of
30,000 Norwegian kroner (approximately $3,662) for an offence against the good order of court
proceedings.

The court's ruling in summary

•The European Court of Human Rights (Court) held that Norway violated Article 10 of the European
Convention on Human Rights (Convention) by compelling Ms. Becker to give evidence about her
contacts with Mr. X.
•The Court began by noting that the parties agreed that there had been an interference, and the Court
was satisfied that the interference had pursued the legitimate aim of preventing crime. The Court then
examined whether the interference was prescribed by law. The Court was satisfied that the interference
occurred pursuant to Article 125 of the Code of Criminal Procedure, and that in interpreting this
provision the Supreme Court availed itself of case law and preparatory works to the provision. In light of
this, the Court found the interference to have been prescribed by law

•The Court noted that the journalistic methods adopted by Ms. Becker had not been questioned. It also
noted that she was not expressly ordered to reveal the identity of her source(s). It was limited to her
contact with Mr. X. Nonetheless, the Court considered that “the possible effects of the order were of
such a nature that the general principles developed with respect to orders of source disclosure [were]
applicable to the case.”. The Court recognized that it had not considered a case of this nature before.
Nevertheless, the Court had previously stated that the conduct of the source can never be decisive in
determining whether a disclosure order ought to be made. Instead, it would only operate as one
important factor to be considered in the balancing exercise. The Court held that this principle applied to
cases where a source had come forward. The Court agreed with the domestic courts that a source’s
coming forward might mitigate some of the concerns intrinsic to disclosure measures, but knowledge of
a source’s identity could not be decisive for the proportionality assessment.

•The Court went on to state that “the circumstances with respect to both Mr. X’s motivation for
presenting himself as a ‘source’ to the applicant and his coming-forward during the investigation suggest
that the degree of protection under Article 10 of the Convention to be applied to the present case
cannot reach the same level as that afforded to journalists who have been assisted by persons of
unknown identity to inform the public about matters of public interest or matters concerning others.”

•The Court observed that, at the time that the order was made, there was no question of further harm
being caused to the Norwegian Oil Company (DNO) or its shareholders. In the Court’s view, the
necessity of the restriction under Article 10 of the Convention mainly turned on the need for Ms.
Becker’s evidence during the criminal investigations and court proceedings. The necessity was also to be
linked to the gravity of the offences Mr. X had been charged for. The Court concluded that Ms. Becker’s
refusal to give evidence had not hindered the criminal proceedings against Mr. X. The Court opined that
“while it may be true that the public perception of the principle of non-disclosure of sources would
suffer no real damage in this situation, the Court considers that the circumstances in the present case
were not sufficient to compel the applicant to testify.” The Court found the order to be unnecessary in a
democratic society and, therefore, there was a violation of Article 10 of the Convention.