Proposition 51K0024

Projet de loi relatif à la protection des sources journalistiques.

General information ¶

Author

N-VA Geert Bourgeois

Submission date

June 25, 2003

Official page

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Status

Adopted

Requirement

Simple

Subjects

communications profession professional secret freedom of the press

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Discussion ¶

May 6, 2004 | Plenary session (Chamber of representatives)

Full source

Mr. Van Parys, I thank you for letting me the task of presenting this oral report!

Mr. Speaker, dear colleagues, I will try to summarize, as best as possible, the various discussions that took place in the Justice Committee on the secret of sources in the context of a debate that was lively and often very interesting.

The European Court of Human Rights ruled – rightly – that the protection of the secrecy of journalists’ sources should be regarded as a condition and a compensation for the right to free expression. A free press is an essential part of the rule of law. Article 10 of the European Convention on Human Rights contains a provision in this direction.

Consequently, it became indispensable that the law made clear in this regard and provided clear guidelines with regard to the balance of the interests in question. If all latitude is left in the case to the judiciary, journalists will remain in legal uncertainty; they will continually depend on how a certain judge will balance the interests in question in one or another case.

A resolution of the Council of Europe goes in this direction. More recently, on 8 March 2004, the Council of Ministers of the Council of Europe insisted on the need for all Member States to endeavor to develop a system for the protection of the secrecy of journalistic sources as required by the case-law of the European Court of Human Rights.

The secrecy of journalistic sources is inscribed in the legislation of several other democratic states, among which Germany, France, the United States and the Netherlands, the latter coming, for their part, to provide a provision in their national law.

Since then, two parliamentarians have submitted proposals regarding the secrecy of the sources. The first one, Mr. Bourgeois, would define the right to the secret of the sources rather as a social privilege since it is freedom of expression that is in question.

According to him, given this privilege and the specificity of this secret of the sources, only a special law, a "lex specialis" can cover the matter.

Article 2 defines what a journalist is; Article 3 defines the very notion of the secret of sources; and Article 4 provides that the secret of sources does not constitute an absolute right and defines the conditions under which a journalist must disclose his source.

Another bill was put on the table. This is a proposal from Mr. Maingain, who also advocates for a wider protection of the secret of the sources. The latter tends toward a more absolute right conferred on journalists and believes that exceptions should be extremely limited. In fact, journalists have a deontology and it is up to them to assess the hypotheses in which the source must or should not be disclosed. He believes that if he does not disclose his source, the journalist must assume the consequences.

by Mr. Maingain thinks it would be interesting to hear a number of experts on the issue. He also called for a broad debate. He was quickly joined by Mr. Bourgeois as well as by all the members of the commission who also insist on the need for certain expert hearings and a broad debate on the issue. Journalists are invited to come and give their opinion on this new legislation.

The minister specifies that the government will not take a separate initiative in this matter and insists that freedom of the press and freedom of expression are two essential freedoms in our democracy. Of course, freedom of expression is not an absolute right and any prejudice to the rights of third parties should be prevented.

Following these two presentations, we started the general discussion.

In the face of these two proposals, a number of questions directly arose in the committee. What is meant by “publication”? Which judges will be called upon to determine, by case-by-case, whether it is the right to the secrecy of the sources or whether it is another interest, referred to in Article 4, that prevails?

Does such legislation not endanger current instructions? How should we understand the word and the very notion of a journalist? Should the protection of journalists be absolute?

The whole committee, however, supports the idea that legislation should be considered, that that legislation should be a special law. The discussion can then begin. The two authors — first Mr. Bourgeois—they find that all groups are willing to take legislative initiatives and that the two proposals differ on certain points. The one of mr. Bourgeois gives a definition of the term "journalist". It clearly specifies what should be understood by “information source”. It does not provide for a complete and absolute secret. by Mr. Maingain also notes that the committee’s will is to legislate and accepts that the committee’s work is based on Mr. Maingain’s proposal. A bourgeois who must serve as a work base after hearing all the experts, having read the opinion of the State Council and that of the Supreme Council of Justice.

In its opinion, the State Council insists, contrary to a previous opinion, on the need for legislation. He advocates a change in the title and a clearer definition of the notion of journalist. The Council of State also advocates to leave a broad discretionary power to the magistrates. by Mr. Bourgeois believes that a strict listing is indeed necessary in the interests of legal certainty. These are exceptions to the rule and they must be listed in a clear and precise manner.

by Mr. Maingain observes that the State Council is also based on the principle that journalists have a right to the secrecy of their sources of information. In the head of the journalist, this protection implies a possibility of choice. The journalist who is convinced of the need to collaborate in instruction can do so, but it is he who must have the freedom to choose. He also insists on not giving too much interpretation power to magistrates as this could extend the exceptions.

However, it does not lose sight in this regard that justice must in any case, at some point, be able to interpret.

The members as a whole also find that the State Council privileges a broad discretion attributed to judges, but we think in committee that it is the responsibility of the legislator to define the clear limits in order to well mark the judge’s assessment that will come later.

The Supreme Council of Justice (CSJ) also stresses the need for legislation. Following this opinion, the members would like to clarify that this does not cover the entire issue of the civil plan. Thus, the commission responds to the CSJ that these bills do not target the civil plan.

The CSJ also advocates a clear definition of the journalist that must cover more than professional journalists. The committee, in its work and in its discussions on all articles, will clearly define what it means as a journalist and the notion of journalist that it intends to protect by this new legislation.

The CSJ insists that the necessary measures are taken so that a mixed body is set up for French-speaking media, as is already the case at the current Flemish level.

The CSJ summarizes in three questions the questions to be answered by the commission: - Who can enjoy this right? This is the definition of a journalist. In what cases can a journalist be obliged to disclose its sources of information? The committee will respond in the context of the definition of the secret of the sources and in the context of the exceptions. According to what procedure? The Commission also responded in its provisions to this observation of the CSJ.

All the experts were also consulted by the Commission. Their reflections were incorporated as much as possible into the discussions and comments of each of the articles.

Then, the committee began to analyze each article of this bill. It took place in three phases, three discussions. I will group all the discussions of the articles into a whole.

Article 1 has not been discussed. Article 2 deals with what "journalist" should be understood in the context of this bill.

The discussion in commission on the question of what to mean by "journalist" was intense and very long. Editing, regular publication, regular processing of information, what is really the determining element of the definition of a journalist? Under what circumstances should the journalist be protected by this legislation? What should be regular? Is it the editing, processing or publication of information?

These issues were the subject of a long and in-depth discussion in the committee, insisting that if the committee shared a common will, it was difficult to define it in a text of law. We all knew what we wanted to mean by the definition of a journalist, but it was very difficult to express it in a text. In fact, the Committee agreed to the proposal of Mr. Maingain, who defines the journalist within the framework of this special law as anyone who processes information in the form of regular communication to the public. It is therefore the communication of information that must be regular and the processing of information that are the two essential criteria for the definition of the journalist within the framework of this bill.

Article 3 is intended to define the notion of secret of sources. It seemed essential for the committee to express its willingness to reaffirm clearly, in this article, the principle of source protection. We have added assumptions that cover the right to the secret of sources, by inserting a "in particular" in recent discussions, in order not to give this list an exhaustive character but rather exemplary of cases where the protection of the source should be respected.

Article 4 provides for cases in which the secrecy of the sources cannot prevail. The main issues addressed by the Commission are as follows.

Who are the people who can compromise this guarantee of the secret of the sources? What are the conditions to be met? The conditions set out in the proposal of Mr. Are they cumulative? In what situation should the journalist be in order to have to disclose his source? Should the cases in which a journalist must disclose his source be limited to Title II of the Criminal Code or to a violation of physical integrity?

Many discussions on these issues took place in the committee. They mainly focused on whether it was necessary to limit itself to violations of physical integrity or whether it was necessary to integrate provisions of the Criminal Code.

It was during the committee meetings on Tuesday and Wednesday that we discussed specific cases in which the journalist had to reveal his source. The question arose of whether the threats to physical integrity were sufficient or should go further.

First, the committee reached a consensus on the fact that the disclosure of the source must take place as part of the prevention of offences or of the prevention of the violation of physical integrity. When the offence is committed and the journalist is prosecuted himself, an intervention by Mr. Maingain convinced us all that the journalist should not be put in a situation more unfavorable than anything justifiable. Then, we also evacuated the “civil” side since it is only in the case when the journalist is heard in order to prevent the commission of an offence that we have planned that he can reveal his sources. The committee also unanimously stated that the conditions regarding the crucial character of the information and the impossibility of obtaining this information by other means were cumulative and should be incorporated into the text.

The only issue that had yet to be addressed was that of exceptions. In the prevention of which offences or in which very specific cases should there be the possibility of not covering the journalist with the right to the secrecy of his sources?

This is really the point that has been discussed, including this week again. The Commission decided to extend the possible exceptional cases to the offences referred to in Article 137 and, subsequently, also to terrorist offences. I am referring to title 1 er ter. Article 5 covers instructional measures. It was also a late addition in the commission. It was the subject of an agreement within it, as well as Article 6, which was the subject of merely technical modifications.

The committee adopted the bill for the first time unanimously and for the second time, on Wednesday, unanimously minus two abstentions.

On behalf of my party, I would like to clarify that the representatives of the CDH group abstained yesterday in the committee when voting on the last part of the text of this bill because of the way the last debates were conducted. In fact, we had unanimously adopted the first version of the proposal about three weeks ago. This text was then returned to the committee and we decided to include the reference to terrorist acts — articles 137 and following. If we could understand the relevance of inserting this type of infringement within the framework of this bill, we considered, however, that, after adopting a text unanimously, the changes should not be made in a hurry. The new measures were incorporated into the text in twenty minutes! I had to finish yesterday at 12:30. So it was more about the form that we had reservations than about the substance.

We believe that this legislation is good. First of all because it reaffirms purely, clearly and simply, in our Belgian law, the right to the secret of sources for journalists. This is the first phrase after the definition of the term. This is the principle — and I think it is the one that the whole commission wanted to pursue — which is reaffirmed. We clearly limited the cases in which a magistrate could require a journalist to disclose his source. That was the Commission’s concern. Effectively, it is necessary to leave a power of appreciation to the magistrates, but it is necessary to channel it, to give it a number of limits. We fixed them in a way, I think, very clear.

These limits are as follows. To obtain an exception to the principle of secret of sources, it must be within the framework of the prevention of serious offences. These are serious infringements either on the security of the State — terrorist offences — or on the physical integrity of persons. Cumulative conditions must also be met. Information must be absolutely crucial in the context of instruction for the magistrate. This information cannot be obtained in any other way than by asking the journalist for its sources. Therefore, I believe that we have clearly limited the exceptions to the secrecy of sources. That is why the whole CDH group will vote for the bill today in the plenary session.

First and foremost, I would like to thank the rapporteur for his excellent report. A characteristic of a good report is to provide this Assembly with a summary of the work so that one understands well what it is about. Mr. Wathelet’s report responds perfectly to that, and I assume, Mr. Van Paris, that you have listened to this report with an approving ear, despite the fact that you have cavalierly given the honor of the oral reporting. Their

Furthermore, I am pleased that Mr Wathelet announced that his group, despite the abstinence, will approve the bill yesterday now. Their

Once this bill is approved, journalists will no longer be forced to release their sources. That source is very broadly defined; it includes, inter alia, the identity of informants, the nature or origin of the information, the identity of the author of a text or an audiovisual production, the content of the information and the documents themselves. Their

The only exception is the forced release of the source at the request of the judge in well-defined cases, namely to prevent two types of crimes. First, a serious threat to the physical integrity of one or more persons. The second crime, after yesterday’s amendment and approved by consensus, concerns the prevention of terrorist crimes. These are two limited but important exceptions. Restricted in the sense that we have opted to say that the source secret must be protected by law and that it can only be revoked at the request of the court. This can happen in two cases, behind which every right-wing Democrat, anyone who is concerned with the proper functioning of the rule of law, can stand. For example, a lawyer who learns in the context of his professional secrecy that a client is planning to attack a magistrate must also speak. Everyone understands that as soon as one becomes aware of a serious threat to the physical integrity of one or more persons or of an imminent threat of a terrorist attack, there are obviously higher interests. This corresponds to the European view on the subject. Their

This only applies in the context of prevention of crimes. Therefore, two additional conditions must be met. First, that information must be crucial in preventing those crimes. Second, it must be so that that information cannot be obtained in any other way. This provides additional guarantees for the protection of the bronze secret. Indeed, it is only when all these conditions are met that detection and investigation measures are possible with regard to the journalist’s information source, I mean here, for example, home search, search, seizure and telephone registration. Their

It is also important, colleagues, that a journalist cannot be prosecuted for healing when he exercises his right to conceal his sources of information. The path of healing has repeatedly been the way to put the journalistic source secret out of play and thus force journalists to release their source.

I know there is — fortunately! — some discussion – among others the journalists’ associations themselves have publicly aroused the discussion – has been about the exceptions. It is good that there has been a social debate on this. It may also be good that we have gone back into the committee, so that the exceptions may now be better defined and also behaved more in consensus. However, I would like to emphasize that those exceptions do not undermine the protection of the source secret at all, but on the contrary. I think that we, having faced all the cases of protection of source secrets that we know, can say that in ninety-nine percent of such cases there is no threat to the journalistic source secret and that these are two well-defined exceptions, which we can endorse.

The draft law, colleagues, has been made — I would like to emphasize it, however — thanks to the cooperation of many: the collegial committee members and colleague Maingain, who submitted a draft law that pursued the same goal and initially based on an absolute right to the source secret. Remarkably, after the hearings, discussions and so on, the two applicants have yet to find consensus around a balanced proposal. I would also like to expressly thank the services for their cooperation: they have done that, as always, very excellently, President. The academics and associations that participated in the hearings also contributed to clarification and refinement. As for me personally, I would like to thank Professor Dirk Voorhoof and Jan Ceuleers for their highly valued support, assistance and contribution. I think that they all contributed to a significant step forward in the field of free expression, a step forward in the refinement of democracy.

I would like to point out, colleagues, the very remarkable opinion of the State Council. As colleague Wathelet has emphasized, the State Council has deviated from its previous position and has for the first time emphasized the need for legislation. Previously, the State Council had always defended the opposite position. Furthermore, the State Council has formulated very remarkable concerns, which have allowed to refine the debate and to sharpen and formulate the matters. With the bill we leave the civil liability of the journalist unshorted and the Council of State has also given a very remarkable opinion on this subject and once again clarified that the civil liability of the journalist is nevertheless limited. The State Council states – I think he is absolutely right – that criticism by the press always involves value judgments and that that criticism is inseparably linked to freedom of expression. The State Council says that always demanding proof of correctness, imposing the exceptio veritatis, putting out good faith and an excessive interference in freedom of expression.

I would like to remind you that in this country, with the regularity of a clock, we are faced with problems regarding the journalistic source secret. Already in the 1980s, there have been uplifting things. Journalists Van Pour and Veto were convicted for healing. In 1985, a Humo journalist was arrested for refusing to disclose a confidential document. In 1998, a journalist of Het Nieuwsblad was arrested by the cell-Jumet within the framework of the Bande van Nijvel for having encouraged it to publish 2 robot photos, the day before they were officially released. In May 2002, two journalists of De Morgen were sentenced on a one-sided petition in short-term proceedings to issue documents on the penalty of a very heavy penalty. This was later revised on third-party resistance. In June 2003, Belgium was once again convicted by the European Court of Human Rights for a house search of journalists in the context of the Agusta-Dassault case. Recently, there was another legal action against a German journalist in Belgium, Hans Martin Tillack.

The European Court of Human Rights played a pioneering role in this matter with the Goodwin judgment of 1996. Then the European Court of Human Rights justified a British journalist who was convicted of contempt of court. He was sentenced to pay a £5,000 fine for refusing to disclose the name of a bettor about the financial difficulties of a software company. The court then issued a groundbreaking judgment saying that the source secret is protected under Article 10 of the European Convention on Human Rights. In fact, this is binding for the Belgian court. From that moment on, one could no longer experience that journalists were punished because they did not release their sources, because the source secret is based on a treaty with direct effect, and because our judges must comply with the Goodwin judgment. However, this does not happen as evidenced by the many examples I have just listed.

The question arises whether we should “legify” or not. Fortunately, this question was answered positively. First, despite the Goodwin judgment, this right was repeatedly ignored by judges. Second, a directive for the Public Prosecutor would be absolutely inadequate. A directive leaves the individual decision-making power of the prosecutor’s office unshorted and, moreover, the directive has no validity in respect of the investigative judge and the civil court. Third, the jurisprudence strongly insisted on a legal regulation. Fourth, journalists have been asking for years and days for a legal arrangement to protect the source secret.

Europe is also urging countries to develop legal arrangements. A resolution of the Council of Europe was adopted in 1993 and a resolution of the European Parliament in 1994. In 2000 there was a recommendation from the Committee of Ministers of the Council of Europe and finally there is Article 10 of the European Convention on Human Rights on which it is based. Article 10 emphasizes freedom of expression, but also entails rights and duties. Very important, it also states that if you impose restrictions on the right to freedom of expression, this must be done by law.

It is important, colleagues, to agree that this right is not an absolute right. As Jan Ceuleers wrote in the Rechtskundig Weekblad, “The right to information is not a personal right of the journalist but a community right that a journalist exercises not in his own name but on behalf of the community.” Article 10 of the European Convention on Human Rights states that this is not an absolute right. It follows that this right is a contingency of the right to freedom of expression and that therefore there must always be a balance with other rights. The State Council has also highlighted the non-absolute character very extensively. This is also emphasized in the Goodwin judgment of the European Court of Human Rights. There may be considerations of public interest that justify a derogation from the absolute right to the protection of the source secret. I quote: “Il faut un impératif prépondérant d’intérêt public.”

I believe that with the limited exceptions that we have included in the law, we indeed comply with that. I think this law is a step forward in strengthening democracy. It is my conviction that without a journalistic bronze secret, the freedom of the press is mouth-dead. The press is the guard dog of democracy.

Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker. Wathelet has very well summarized the substance — and with twists, but constructive within the Justice Committee. We have, indeed, carried out a genuine first work of reflection on a sensitive topic, namely the relations between the press and justice. The proposed text appears to be satisfactory. However, the task was not easy as the starting positions were antagonistic. In this matter as complex as it is delicate, which requires ⁇ ining this often fragile balance between freedom and responsibility, there is no doubt for anyone that the bill we are going to vote just now constitutes a first step. For some, this text may seem excessively pleasing to the media. For others, on the other hand, it seems to limit the right to express certain truths. I leave everyone to judge.

The right for journalists to silence their confidential sources of information is an essential condition for any real freedom of information and dissemination and, consequently, for any democracy. However, the current lack of clear regulation has led to conflicts between justice and the press and has resulted, as we have already recalled, in several convictions of Belgium by the European Court of Human Rights. Therefore, it was useful to remedy this situation.

More fundamentally, the debate we have had in the committee has obviously been centered around essential values that are both uncompromising and shared by all, but that can also confront each other. On the one hand, there is freedom of expression and the right to information. There is, indeed, no democracy, no accomplished citizenship where speech is broken and information censored. On the other hand, there is respect for privacy and its corollary, respect for instruction and the right of each to public dignity. There is also this formula, which has become universal, according to which "my freedom stops at the freedom of others". Our society is therefore built on the necessary combination of these rights.

Therefore, in the presence of such fundamental rights of equal value, it seemed to us to be our duty to find a certain balance between freedom of expression and the right to respect for privacy. No matter how essential the freedom of the press is, it is a profound contradiction about the nature of law to make it an absolute principle. Right, on the contrary, is the reconciliation of antagonistic interests and claims.

Furthermore, we were also unable to make the economy of a debate on today’s information deviations. We deplore the compulsory rapidity of information, the perpetual search for a scoop that sometimes leads to superficial processing, or even to some debris, which, let me emphasize, is not necessarily the sole responsibility of journalists.

During the discussions, I personally insisted that the ratione personae scope of the proposal be clearly delimited through, in particular, a clear and responsible definition of the journalist who can benefit from the right to secrecy of sources. It was indeed unthinkable for us — still in this concern of balancing the fundamental rights in the present — to grant such protection to anyone who proclaims himself a journalist and writes, for example, 10 lines on the internet.

The criteria for handling and regularity of the information will give the judges sufficiently precise tags to determine the scope of this proposal and avoid abuse.

Another point that has led to a lot of discussion is the problem of the recel. The text proposed to you stipulates that a journalist cannot be prosecuted for refusal when he exercises his right not to disclose his sources of information. It may seem shocking, legally and morally, to allow some people to get a white-seing to commit an offence. Politically, however, since we have all decided to legislate on the right to source confidentiality, was it realistic to limit that right to only legal sources? Such limitation constitutes a denial of the basis of protection, namely to guarantee the freedom of the press in its mission of general interest, which consists in informing the public on any matter of interest to the public. Can the right to information therefore depend solely on official or legal sources?

I would also like to emphasize the fact that this is not a whiteseing granted to the journalist to do work of recel. The journalist will not be able, under the coverage of this bill, to change his profession and become a professional recruiter. This derogation from the punishment of the offence for recel is, in fact, only valid for the information on which the journalist exercises his right to confidentiality. We are therefore always well faced with ⁇ ining a necessary balance between rights and freedoms present.

Would I also dare to emphasize the obvious that journalistic sources must be credible, relevant and worthy of interest? In this context, I would really like to insist on the representative associations of the profession of journalist, responsible for defining the standards of their professional ethics, that they establish as soon as possible the appropriate control mechanisms. Indeed, in this matter, the law can and even must do useful work. But it has its limits.

Before concluding, Mr. Speaker, I would like to return to the rebound caused around Article 4 of the proposal. In the first text voted unanimously by the committee, this article provided that the journalist may be required, on the order of the judge, to disclose his sources if they can prevent offences related to crimes and offences against the security of the State or to prevent offences constituting a threat to the physical integrity. Wathelet reminded him just recently.

Some journalists feared a too broad interpretation of the concept of state security and therefore a misuse of this exception by judges against the media and journalists. Honestly, I think the debate deserves better than a stigmatisation of professions: bad judges on one side and good journalists on the other, or vice versa. However, the return of this text to the committee allowed the work to be returned to the profession and refine the reflection on the scope of this exception. While, for some, the notions of crimes and crimes against the security of the State, although subject to precise criminal qualifications, could appear to be too detrimental to the protection of the secret of the sources of journalists, it has seemed necessary, given the current international climate, to allow the judge to remove the secret of the sources in order to prevent terrorist offences. Indeed, while the freedom of the press is a very fundamental element of our democracy, the protection of citizens against the terrorist threat is ⁇ the same.

Furthermore, the terrorist offence is subject to a precise definition and qualification in the Criminal Code, as amended and added by the Act of 19 December 2003. Furthermore, the interpretation that the judges will make of this notion will be made in the light of all the provisions of this law.

Article 9 of this Act provides that no provision of the Act relating to terrorist offences may be interpreted as aiming to reduce or impede fundamental rights or freedoms such as the right to strike, the freedom of assembly, association or expression, including the right to found trade unions with others, to join them for the defense of their interests and the right to demonstrate related to them, as enshrined in particular by Articles 8 to 11 of the European Convention for the Protection of Human Rights and Fundamental Freedoms.

In this context, it seems to me that sufficient safeguards are provided to avoid a too broad interpretation of this exception. The future will tell us whether the law we vote will prevent the abuses we have experienced in the past. We will ⁇ be led to evaluate the work we are doing, to learn from it and possibly to improve the text which once again is only the necessary first step of a process of reflection. This text, not as much as the others we vote for, is not perfect or even immutable. It is therefore by being aware that this text is improved and that the Senate will ⁇ work in this sense that my group will vote in favour of the proposal.

Mr. Speaker, Mrs. Minister, colleagues, one of the problems in a debate like this is that we are essentially all in agreement on the substance of the matter. I had prepared a presentation in which I once again summarized a number of points on the proposal, but I consider that the statements of my predecessors, Mrs. Déom, Mr. Bourgeois and Mr. Wathelet, actually also reflect my opinion on this bill.

Therefore, I could suffice to say that the VLD group actively contributed to the drafting of the text and fully supports the text presented today. However, I cannot afford to make a couple of minor concerns based on what has been said here on the speech floor.

The first consideration concerns the need for such a legislative initiative. We live in a society where the European Convention on Human Rights exists, with control by the judiciary, up to the international level, on the rights contained therein. To a certain extent, even today, without this text being a law, there is a protection of the source secret. In practice, however, this protection does not work.

Mr. Bourgeois has listed a few examples. The most recent is that of the journalist of Der Stern who had to undergo a house search up to twice because he had announced that there was a fraud scandal in the European Parliament. This has led to very great consternation in the media world, which is extensively present in Brussels. Although there is such a thing as protection, it does not work in practice. These examples show that and prove that.

Why does this protection not work in practice? Because the people who are supposed to apply the law, the investigative judges, for example, do not always have a clear text that clarifies what can and what can not, when they happen to be confronted with an aspect of the source secret. The great merit of this initiative is that we now come to a text that can be included in every handbook of our students’ criminal law and that is incorporated into the collective memory of all who have to deal with the right in this country. This allows us to ensure that the principle of source secrecy is also effectively implemented on the ground. The example of Der Stern shows it clearly: under this law, those home searches could not have taken place.

My second consideration is not about the content but about the form. At the end of our committee meeting yesterday — Mr. Wathelet has alluded to it — there were some tensions that may have been related to the pace at which the final text is changed and some adjustments are being made. I want to take full responsibility for this.

It is clear: when the committee unanimously approved the text, it came to the plenary session of the Chamber and there, among other things, following a number of critical concerns from the world directly involved in it, several amendments were submitted, amendments which are contrary to the consensus that existed until that moment. At that moment the chairman of the Chamber acted – which is logical – in concert with especially those who throughout the whole discussion – Mr Bourgeois, Mr Maingain – have been the main actors of our debate, debate in which we have sought to come to a common text primarily on the basis of their different views and of the further contribution of the other members. If a proposal is made to refer the matter again to the Justice Committee, provided that it returns after one week, it is my duty as chairman of the Justice Committee to implement what we have decided in the plenary session.

We must regularly invoke the goodwill of everyone in this House in order to carry out our legislative work. When at any given time we ask proposals subjects to give up their right to be considered in the plenary session, because we hope to make an even better text in the committee, and when those subjects are willing to do so, but express the desire that the debate will not be postponed to the long run and that the matter will be re-entered in the plenary session within the week, I would like to honor that agreement as well.

We had a first discussion on the issues that were still discussed on Tuesday. At the same time, all proposals that could bring substantial changes were also discussed. We resumed the debate on Wednesday and indeed, we then, after half an hour or three quarters of discussion, passed to the decision making.

We have met nine times in the Committee on Justice on this text. The experience of that debate has taught me that the longer the treatment takes, the solution is therefore not closer. At some point we must take responsibility and make choices. I think everyone yesterday, with full knowledge of the texts that submitted, made a choice. I am therefore pleased that — I think I have understood that — today the content consensus is returning again.

The two changes we have made in the last few days are, in my opinion, two improvements. On the one hand, we have stated that for those crimes for which in exceptional cases the source secret can be lifted when it comes to physical integrity, this should be limited to the serious threat to physical integrity. This is a clear step forward. The second improvement is the replacement of the reference to the crimes in Title I, Book 2 of the Criminal Code by a reference to Article 137 of the Criminal Code. Indeed, this was removed from a reference to articles that may be little used, but which are broadly described so that they can be susceptible to potential abuse by those who wish to use them. We have shifted from this to a type of crime – which has been discussed very recently in the Committee on Justice – which has an international impact because they are directly included in the European Framework Decision on terrorism. Their

In this country, where a significant portion of the problems relating to journalists and source secrecy has to do with foreign journalists because of the presence of European and international headquarters in Brussels, we have, in my opinion, made a wise choice to choose a type of exception that has an international support, which is modern and that can be interpreted by the judiciary in the full context of the concept of “terrorism”.

Our society must not only convey the message that journalists should be given as much freedom as possible. This is ⁇ the intention of this Parliament and of the VLD. We also bear responsibility in relation to other interests in our society. I would not like to end up in the situation that a law is passed today, but that we must conclude tomorrow that a major terrorist crime cannot be investigated because we have passed this law. That’s why we made this improvement that I still support 100%.

I am convinced that the basis of the present text – regardless of whether it will be changed later on – will make school in Europe and that we will surely not be a successor, but a precursor in that area and that our legislation will be sure and firmly observed.

Mr. Speaker, Mr. Minister, I would also like to thank the rapporteur for his presentation of the discussions in committee. I would like to remind you of the subject of the proposals submitted. It aims to respond to situations of search and open assault by investigative judges against journalists, in view of cases that have shaken the news of our country. It also aims at the obligation to legislate, following the 1996 Goodwinn judgment of the European Court of Justice.

Initially, discussions on these bills led to a relatively broad scope of the definition of a journalist. This scope relates to the dissemination, by anyone and in a regular manner, of information. This has sparked, on the part of some colleagues, a kind of concern about how journalists could handle information, since they were not always people subject to a code of ethics, professional bodies and respect for information. Furthermore, it was also not about falling into the Angelism, according to which everything would go well on one side or everything would go bad on the other.

The world of journalism must be respected in view of a series of professional obligations that are assigned to it, but the laws also aim to prevent situations in which the judiciary could use journalistic sources to advance cases that, otherwise, no longer offer the possibility.

Thus, good intentions at the beginning of the bills, jurisprudential obligations of the European Court of Justice in Strasbourg and problems of extremely wide scope of the bills, for which a compromise text was finally able to be drafted. We talked a lot about exceptions. They have been extended quite significantly, both on offences endangering the physical integrity of persons and on the offences covered by book 2 Title 1 er of the Criminal Code on the offences "external security" and "internal security".

Obviously, this concerns the prevention of crimes which can be considered in a much broader way than what is known so far. In fact, there are more preventive measures than committed crimes. Therefore, the scope of exceptions - in this regard, I disagree with Mr. Bourgeois - is as extensive as what the term "prevention" encompasses, even despite the attribution to the judge of extremely severe conditions to allow him to intervene. The whole question is whether, at some point, the judge will consider or not that an information subject to a "scoop", in the proper sense of the term - and that others do not possess by definition - gives him at that time the opportunity to intervene, because acting in the context of a possible infringement.

That was the whole debate. By introducing my amendment last week, I was actually echoing associations of journalists who were concerned about these provisions. I was very surprised by a comment from a PS colleague who blamed me for having echoed these concerns to introduce my amendment.

Of course, I do not share this view on the role of Parliament. We struggle to hear associations to give us their point of view; if these associations express, at the time of the outcome, a point of view that does not suit some, it does not mean that one cannot echo them and try to answer legitimate concerns since coming from directly concerned persons.

Mr. Speaker, the fellow of the PS to whom Ms. Nagy speaks, is me.

What I reproached Ms. Nagy was ⁇ not to echo the concerns of the association of journalists that we also met, but to do so afterwards, while the debate had already taken place in a committee and these arguments had already been exchanged, and to introduce this amendment very late.

Mr. Speaker, I will not repeat a controversy that I find a little futile given the importance of the issue. I simply say that it is interesting – and the final result shows that it was not entirely uninterested – to be listening, at any moment, to what is being said outside the parliament. This is a quality to be acknowledged to parliamentarians rather than a reproach to address them.

We actually had a discussion on the actual scope of the exception proposed by the Commission. Surprisingly, as some have acknowledged, the issue of Article 137 of the Criminal Code then ended up on the table, that is, the application of the law on terrorist acts.

It was quite peculiar to begin the discussion with an exception that posed a problem, and then to arrive, virtually without discussion and without the opinion of the State Council, to give a new scope to this exception, by introducing Article 137. Personally, I defended the thesis that, by incorporating the notion of offences endangering the physical integrity of persons, one responded to the concerns of the commission, which I can share: the secret of the sources can sometimes be lifted if one considers the possibility of a serious infringement on the physical integrity of persons, which can cover what is found in the offences provided for in book 2, title 1 of the Criminal Code and in article 137 of the same Criminal Code.

For this reason, because I believe that in this area it should be seriously discussed and taken as many guarantees as possible, my group will abstain on this text.

The discussion in the Senate will eventually allow to deepen the issue. We could then obtain a text that does not go against the intentions of the authors, i.e. the protection of the secret of the sources of journalists, instead of leading to the opposite result: giving the possibility to magistrates to lift this secret from the sources even more frequently than today.

Mr. Speaker, Mrs. Deputy Prime Minister, I think everything has been said about this bill. I will therefore limit myself to a vote statement. We will approve the bill of colleague Bourgeois. We would like to congratulate colleague Bourgeois on this initiative. We will approve it, colleagues, because there is indeed an urgent need for legal protection of the source secret of journalists. We have, by the way, always defended this in our group in all kinds of circumstances and qualities. Indeed, we want to prevent, colleagues, that journalists are increasingly forced in the courts to price their sources of information, against the jurisprudence of the European Court of Human Rights, which in the concrete reality in recent years has provided insufficient protection on the ground.

The CD&V Group welcomes the removal of the exception on the protection of the source secret for the crimes referred to in Book II, Title 1 of the Criminal Code. This would have given rise to numerous abuses, which indeed again created the risk that the journalistic source secret could be compromised. We are pleased that this has happened, thanks, among other things, to an amendment submitted by colleague Van der Auwera at the plenary session last week. We have expressed dissatisfaction with the fact that there was a need for another round in the committee thereafter, but I am satisfied with the presentation and explanation of this by the chairman of the committee.

Our group will approve this bill with conviction, colleagues, because this makes the legal protection of the journalistic source secret a fact.

“It is a natural right to use your pen as your tongue, to its dangers, risks and fortunes.” – Voltaire I don’t know if the bill we’re going to adopt will allow journalists — I leave them judges — to make better fortunes. I know in any case that it will participate as a part in reducing the risks and dangers that they may occasionally incur due to the judicial authorities.

Let us return to the legal doctrine on this debate that goes back several decades. I recall an article in the "Journal des Tribunaux" dated March 15, 1980, authored by Gérard Leroy and entitled "Does an author have the right to silence his sources?" I will only cite a brief fact. On 13 September 1855, "Le National", a Brussels newspaper, published a letter dealing with, I quote: "painful murmuring of a part of the population included everywhere in the crowd this trembling precursor of very great difficulties." Concerned to discover and punish, if necessary, the leaders who would agitate the working class, the judicial authority invited the editor-in-chief of the newspaper to name the author of the letter who had given this information to the newspaper. The editor refused. He was condemned. The Court of Cassation rejected his appeal, stating that he was obliged to testify in court on the basis of Article 80 of the Code of Criminal Investigation.

I am not referring to the history of jurisprudence. It is known that there was the famous Garraud affair of the newspaper "Pour" in the early 1980s, for those who remember it. There was a “Humo” case. I could quote a lot of them up to the most recent case Ernst and Consorts. Many of these judgments are enlightening. Sometimes journalists were prosecuted on the basis of refusing to testify in court, sometimes on the basis of recel in the most recent cases.

It can be said that the need to legislate did not appear at first, so it is true that the case-law of the European Court of Human Rights is ⁇ protective of the freedom of expression and the freedom of the press that serves this freedom of expression. The Court’s interpretation of Article 10 of the European Convention made it possible to consider, since the Goodwinn judgment recently cited by this fairly precise case-law of the Court, that, in the balance to be taken into account, the Court gave a fairly clear advantage to freedom of expression. “One of the essential foundations of a democratic society is the guarantees granted to the press so that it can inform the public on issues of general interest.” The Court of Justice of the European Union said that restrictions to this fundamental freedom should be admitted “only if the restriction is justified by an imperative social need.” This assessment of the imperative social need is left in the first place to the assessment of the national authorities in accordance with the case-law of the Court. The Court has not failed to recall that the protection of journalistic sources is one of the cornerstones of press freedom.

The absence of such protection could deter journalistic sources from helping the press to inform the public on matters of general interest. As a result, the press may be less able to play its essential role as a guard dog and its ability to provide accurate and reliable information may be diminished.

Given the importance of the protection of journalistic sources for the freedom of the press in a democratic society, such a measure may be compatible with Article 10 of the Convention only if it is justified by a prevailing imperative of public interest.

And until now it was the jurisprudence of our courts and courts that was brought to assess what was the exact scope of this prevailing imperative of public interest. It must be acknowledged, whether in the case Ernst et consorts or the case of the so-called "Chain Canard" in France, that there has been evidence that the judicial authorities had some reluctance to take the full measure of the scope of the case-law of the European Court of Justice. That is why it is necessary to legislate.

Where, it was recalled, the State Council in 1987 expressed some reluctance for the legislator to intervene, today the State Council, in the opinion that preceded the examination of our proposal of law, recognized the need to legislate. But to read the opinion of the State Council that was given to us in November last year – parliamentary document of 25 November 2003 – we can see how the State Council still had some reservations to leave to the legislator the care to guide the judgment of the judicial authorities. "Given the importance of the matter, the Council of State asks whether it would not be useful to give the judicial authorities the necessary discretion to safeguard, in a democratic society, a just balance between all the values which constitute its essential foundations." In short, the State Council invited us to legislate to better confirm the discretion of the judicial authorities.

It must be said that we made another choice. And I dare to say here, contrary to what I could read in press interviews - and I think in particular of the comments, I think too vivid of Mrs. d'Outrelepont, in a recent interview with the daily "Le Soir", taxing the bill and the law as adopted in a "antidemocratic" law committee - that we are dealing with a true law of democratic progress and protection of a fundamental freedom.

Two arguments for this. First, everyone knows that the interventions of the judicial authorities have always been made, after the commission of a crime, to know in one way or another the perpetrator of the crime they tended to pursue. We formally exclude that the secret of the sources is lifted for the prosecution of a crime after its commission. In other words, in this case, as I said in the commission, the journalist will never be an informant of justice. Justice has means at its disposal, far superior to the investigative power of a journalist, to search for the perpetrators of crimes, even the most serious. The means of investigation have been strengthened. It is up to the justice to implement these means without forcing a journalist to become an informant of justice.

Therefore, we have retained the possibility of removing the secret of the sources only for the sole prevention of certain crimes or crimes of exceptional gravity.

I had suggested that certain crimes or crimes constituting infringement on the internal or external security of the State may be detained. This has also triggered a press debate.

I recalled — we have removed this possibility — that no longer has been prosecuted on the basis of Book II of Title 1 of the Criminal Code since the late 1940s, since most of these crimes and crimes are crimes covering periods of war or cases of intelligence with an enemy power. It must be acknowledged that this is exceptional. However, since this is the case, it could be removed.

We have taken two hypotheses: the serious infringement – useful precision made by the chairman of the commission – on the integrity of a natural person (sexual offences, murders, homicides) and, of course, all the crimes and offences included in Article 137 of the Criminal Code which aggravates the penalties crimes and common law offences, but which are committed with the intention or in the terrorist circumstances described in Article 137. These are the only cases that justify the removal of the secret of the sources and again, in the case of a judicial instruction and under certain conditions specified by law.

Ms. Deom, yesterday in the committee, read us and compared our proposal with legislation in force in other member states of the Council of Europe. Let those who criticize our bill go and read the laws in force in Portugal, in France, in the Grand Duchy of Luxembourg where the lifting of the secret of the sources can be justified not only for preventive purposes, but also for the pursuit of crimes and for the sole motive or the sole invocation, without reference to precise criminal qualifications, to the security of the State, to the prevention or prosecution of certain types of crimes in an unqualified and very broad manner, finally left to the judge's judgment.

We have done a job of finding the right balance between a fundamental freedom and the protection due to society under certain circumstances.

I will conclude by saying why we need a law ultimately so protective of the right of journalists to silence their sources. Of course, because press freedom is a fundamental freedom in a democracy. The Nobel Prize in Economics, Mr. Amartya Sen, published in "La Libre Belgique" on the occasion of the World Press Freedom Day, 3 May last year. I read a short excerpt. “The acquisition of values based on knowledge and not on embryos requires real openness in communication and debate. Freedom of the press is vital to this process. Indeed, value acquisition is an interactive process, and the press plays a major role in promoting these interactions. New standards and priorities emerge through public debate and it is through public discussion, there too, that new standards are spread across the different regions. And yet, censorship policies try to isolate us from each other. This repression impoverishes our existence, limits our knowledge, destroys our humanity, and affects our ability to learn from each other.”

The freedom of the press deserves to be protected. This freedom implies, of course, the responsibility of those who benefit from it. We wanted that, in compliance with the article of the Constitution that guarantees the freedom of the press, not only the professional journalists, we wanted that this freedom benefit all those who process the information. And the doctrine also joins us in this sense. We wanted it because silencing its sources of information, even if it is derogatory to other values of society, allows, in any case, that the truth is never killed.

March 17, 2005 | Plenary session (Chamber of representatives)

Full source

I refer to the written report. It was a brief discussion after the Senate file had returned. I think that the report is clear and that it does not need any further oral explanation unless someone asks for it.

On 25 June 2003, Mr Bourgeois submitted a bill to protect the sources of information of journalists. A week after the discussion in the House and Senate, the bill will be submitted today for approval in the plenary session. Indeed, it is regrettable that journalists are occasionally brought before the court to give their sources a prize, despite the case-law of the European Court of Human Rights. The legislator ultimately had to take its responsibility and protect the bronze secret, whatever happened.

This is an important day for the journalistic world. I am therefore pleased that the broad lines of the original bill have been preserved. Nevertheless, I found the text of the Chamber wider, because the emphasis was placed on the regular communication with the public and not so much on the status of the journalist.

I submitted amendments, but I withdrew them in the committee. First, because there was too little support, and secondly, because I didn’t want to unnecessarily delay the file. Nevertheless, I take the opportunity to point out that the State Council says that the source secret should not be reserved to professional journalists alone. This would be contrary to Article 25 of the Constitution. Anyone who writes for a newspaper from time to time should be protected as well as the professional journalist. This is also recognized by Europe. We note that there are fewer and fewer full-time employees in journalism and more and more freelancers. Some are self-employed and are therefore protected by the new law. However, there are also many who are neither self-employed nor employed, but only writing as a hobby. Should their resources be protected?

Nevertheless, this bill represents a big step forward after so many years of uncertainty. Per ⁇ it would have been better to use in Article 2 the definition of "recognized journalists with a press card" rather than reflecting on the journalist's professional or non-professional character. It was a milestone, but there was more in it.