Advocacy letter

Kosovo: Letter on protection of sources bill

staff image

ARTICLE 19

23 May 2013

Share
Print

This letter has been sent to all Members of Kosovo Parliament 

Introduction 

The Balkan Investigative Reporting Network and ARTICLE 19 welcome the draft-law on protection of journalist sources, adopted to be sent in its first reading by the Committee on Media of the Assembly of Kosovo, on 19 April 2013. We urge the Assembly to adopt the draft-law, with some amendments, that we propose below. 

Currently, Kosovo lacks the legal basis for the protection of journalist sources following the removal of previous protections. The Constitution of Kosovo, Criminal Code and Criminal Procedure Code now are all silent on the protection of such sources. The Constitution stipulates the basic principles for the protection of freedom of media and freedom of expression; however such principles do not protect sources explicitly, which can lead to conflicts and undermining of this fundamental right. This is the main reason why European countries which have freedom of media stipulated in their Constitutions have also adopted laws on protection of sources. 

At the same time,, the criminal procedure code prohibits the summoning of journalists as witnesses in courts. However, it should be clearly noted that journalists are only protected as witnesses. For instance, if one journalist happens to be present in, or witnesses a criminal offence, then he is not invited as a witness. However, this Article does not protect the journalists from disclosing their sources. 

The Council of Europe, both the Committee of Ministers in Recommendation No. R (2000) 7, and more recently the Parliamentary Assembly in its recommendation 1950 

(2011) on protection of journalist sources, calls upon member states to ‘adopt legislation on protection of journalists’ sources.”1

Most European countries have adopted legal protections on sources with special laws, specific constitutional articles, criminal codes or other legal acts. States that have adopted such laws to date include Austria, Norway, Belgium, France, England, Switzerland and Germany. In other states, such as Spain, Sweden, Portugal, Andorra and Germany, such protection is provided in the constitution. (In Germany, there is a 

1 Recommendation 1950 (2011) of the Council of Europe on protection of journalists’ sources can be accessed at: http://assembly.coe.int/mainf.asp?Link=/documents/adoptedtext/ta11/erec1950.htm 

court decision according to which the protection of sources is considered a Constitutional category).

Good legislation on protection of sources has also been adopted in Armenia, Croatia, Cyprus, Denmark, Finland, Georgia, Lichtenstein, Lithuania, Malta, Norway, Poland, Romania, and Turkey.

PNot withstanding whether a country has adopted a specific law on the subject or not, , the 1996 European Court of Human Rights case Goodwin v. United Kingdom and several subsequent decisions apply. The Court has ruled that Article 10 on freedom of expression of the European Charter on Human Rights requires that countries must recognise the protection of journalists’ sources, including restrictions on searches of homes and offices (Tillack v. Belgium, 2007) and surveillance (De Telegraaf v. Netherlands, 2012).  

The draft-law adopted in its first reading has certain deficiencies, as it fails to take into account newer practices of the European Court on Human Rights, the impact of information technology in media and recommendations of the Council of Europe. 

The draft-law is based on Belgian law, which is considered one of the best laws in Europe, but needs to be updated in order to take into account newer developments in the sphere of journalism. 

Hence, in order for this draft-law to be complete and in full compliance with European standards, BIRN and ARTICLE 19, as organizations specialized in rights of media, propose the following recommendations: 

Recommendations 

Article 2 – Scope 

According to this article, the law only applies to “citizens of the Republic of Kosovo and other non-resident persons”, but this may be deficient since the law could be non-applicable to foreigners that reside in Kosovo. Further in this article it is vaguely 

stated that ‘they may not be deprived from the protection of rights and privilleges guaranteed in this law” which qualifies the protection in an unclear manner which may further limit it. A clear statement of protection would be helpful. 

Recommendation: This article should be amended as follows: “This law is 

applicable for all journalists and other media professionals that operate under the 

jurisdiction of Republic of Kosovo.” 

Article 3.1.2  – Definitions 

The definition of ‘journalists’ is narrow as it seems to only apply to persons that 

distribute information through professional media. Since the term media is not defined in this law, the term journalist only appears to apply to persons that work in 

2 See report “Legal Protections and Barriers on the Right to Information, State Secrets and Protection of Sources in OSCE Participating States”, 2007, published by OSCE, page 25 3 This information may be found in the report titled “Access to information by the media in the OSCE region: trends and recommendations”, 2007, published by OSCE, page 11. 

professional media. This excludes bloggers, writers, or non-governmental organizations which conduct research and publish reports. 

Recommendations: Article 3.1.2 should be amended as follows: “Journalists are 

legal or natural persons that are regularly or professionally involved in the collection and distribution of information to the public by any means of mass communication, including ICTs.”

Article 3.1.3 – Definitions 

The definition of ‘media professionals’ is also too narrow, as it fails to include natural or legal persons that may be contracted from abroad to provide professional services for media, including: printing houses, website management companies, etc. 

Recommendation: Article 3.1.3 should be amended as follows: “this term includes 

editorial staff and any other person excluding the editorial staff, which during the exercise of their functions or due to professional relations with media, may be in the position to obtain information that may lead to the disclosure of the source, regardless of whether this is conducted by means of collection, editorial treatment, production or information distribution. The term also includes cameramen, photographers, their support staff, such as drivers, interpreters and others, and any other natural or legal person that has professional relations with media”.

Article 3.1.5 

Definition of ‘material’ is incomplete as it does not include data that may be stored in 

computers, hard disks, USBs or other means. 

Recommendation: Article 3.1.5 – definition of ‘material’ should also include the sentence “information gathered in any manner, including but not limited to, computers, hard disks, and other information mediums.” 

Article 4 

This Article should also include an additional paragraph ensuring that journalists do not disclose documents or information which may expose the story which the journalist is investigating. Namely, in addition to protecting the source, journalists must also protect any information which may lead to exposing stories they are investigating. 

Recommendation: under paragraph 4.4 to add paragraph 5, with the following text 

“disclose contents of information or documents which may lead to the story which the journalist is investigating being exposed”. 

Article 5.1 

4 This definition is taken from the Recommendation of the Council of Europe R (2000) 7 on the right of journalists not to disclose their sources, which can be found at: 

http://www.coe.int/t/dghl/standardsetting/media/doc/cm/rec(2000)007&expmem_EN.asp 

5 This definition is also found in the Recommendation of the Council of Europe R (2000) 7 on the right of journalists not to disclose their sources. 

Disclosing sources or information should be done with a request of the court, but rather through a written decision of the judge. 

Recommendation: Article 5.1 should be amended as follows “Journalists and other media professionals are obliged to disclose the identity of the source of information, 

as referred to in Article 4, only by a written court decision, and only if...” 

Article 6 

This Article provides no complete protection and security for journalists and media professionals. The Article should be extended to define prohibition of the use of various investigative techniques, which may be used against journalists, such as phone tapping, surveillance and examination of journalists, etc. 

Recommendation: in line with the recommendation of the Council of Europe, Article 

6.1 should be amended as follows: “All measures of disclosure or investigation which aims to identify sources of information, as presented below, are prohibited: searches in homes, premises of media companies, or any online public communication company, news agency, vehicles of such companies or agencies, or houses of journalists. Interception of communication or communications data or any type of journalists’ correspondence or their employers, and tapping and trailing of journalists, their contacts or employers is prohibited.” 

About BIRN 

Balkan Investigative Reporting Network is a nongovernmental organization which produces the TV programmes Life in Kosovo, Justice in Kosovo, online portal Gazeta Jeta në Kosovë and the only newspaper in English, Prishtina Insight. BIRN is also involved in media development, building journalism capacities, development of transparency and accountability of public institutions and improvement of legislation, with a focus in the right of media. The organization consists of a close group of editors and trainers involved in analytical and investigative reporting, in complex political, economic and social issues. 

www.birn.eu.com 

About ARTICLE 19 

ARTICLE 19 is an international human rights organisation which defends and promotes freedom of expression and freedom of information all over the world. Article 19 believes that freedom of expression and access to information is not a luxury but a fundamental human right, and campaigns against the widespread use of defamation laws, restrictions on media, and censorship to safeguard pluralism and diversity of views. ARTICLE 19 was an intervenor in the Goodwin v UK case and Sanoma v. Netherlands cases and has subsequently been active in promoting the right of journalists to protect their sources in national and international fora around the world. ARTICLE 19 is a registered UK charity with regional offices in eight countries. 

logos

 

Downloads