Is summoning of Rustavi 2 journalists by the prosecutors legal?
On 17 December two Rustavi 2 journalists were summoned as witnesses to the Prosecutors Office on two different cases. From journalist David Kashiashvili investigation wanted get information regarding the story that had been aired in the main news program of Kurieri the previous day. In the story, former employee at penal colony for women spoke about secret meetings of Members of Parliament with the subsequently pardoned prisoner and accused the MPs of corruption. Thus, the story concerned an issue of public interest, regarding attitude of high-level officials towards amnesty and pardons, and is a subject of discussion in the society. Journalist David Kashiashvili used his right to refrain from naming his source and did not answer investigator’s questions.
Another journalist of Kurieri Natia Trapaidze was also questioned. Investigators wanted to know what information she had about statements made by members of Pirtskhalava-Tsaadze family regarding possible participation of a judge in corruption. Natia Trapaidze heard statements by members of Pirtskhalava-Tsaadze family during press conference, together with other journalists, and worked on the story regarding this issue, just like other TV channels’ news programs did, however, so far only Natia Trapaidze has been summoned by investigators.She went to the questioning, but did not answer investigator’s questions.
In these cases journalists used the legal guarantee envisioned by law. According to the Criminal Procedure Code of Georgia, journalists have no obligation to be witnesses and to testify regarding the information received during fulfilling their professional duties.This legal norm has its purpose and serves for protection of freedom of the journalistic work as the necessary element of democracy. It would be very difficult for journalists to get and issue the information which, due to its contents, is of high public interest, if they could not give their sources firm and convincing guarantee of confidentiality. If journalists could not guarantee anonymity to their sources, they often would not be able to obtain and disseminate information of public interest. As a result, media would not be capable of fulfilling its key watchdog function.
This spirit is shared in the Georgian law on freedom of speech and expression, which, according to assessment by international organization ‘Article 19’, is one of the most progressive and forward looking from the point of view of protection of freedom of expression in Georgia. According to the organization, articles on protection of professional confidentiality establish high standard of freedom of expression, which corresponds to the best international practices.
According to this law, freedom of expression means the right of a journalist to protect secrecy of the source of his or her information and to make editorial decisions in accordance with his or her conscience. According to the same law, professional secrecy includes information shared with a journalist as a result of his/her professional activities.This provides this information with further guarantees of legal protection. According to Article 11 of the law, the source is protected by absolute privilege and nobody has the right to demand its disclosure.Disclosure of confidential information is unacceptable without decision by the source itself or the court decision in the cases envisioned by the law. Thus, the law establishes different standards of protection of the source of confidential information and for this information itself. The source has the absolute right of protection, while the information itself can be disclosed if certain conditions are met. Even in such case, the court has to confirm that disclosure of the information is necessary for protection of an important interest or right. For instance, if information in possession of a journalist confirms innocence of the accused, refraining of its disclosure would violate the right of fair trial. Meanwhile, absolute protection means that journalist can never be obliged to disclosure the source of information, however important are the counterweight interests.
Such standards regarding source disclosure are established by the European Court of Human Rights in the Goodwin case, where the court found a violation of Article 10 of ECHR, which concerns freedom of expression, and stated that protection of journalists’ sources is key condition for the freedom of press.
Such legal approach serves to stimulate passing of information to journalists. The citizens who often confront a difficult dilemma whether to share information they have about a violation, corruption, crime or other questionable action by public officials, must be encouraged to trust publication of this information to journalists, for whom this is professional responsibility. If no adequate guarantees of protection exist a source may refrain from sharing with journalists information which is of high public interest.
The guarantees existing in the law need to be strengthened and reaffirmed by state agencies through their actions.Even summoning of journalists for questioning as witnesses can send negative signal for the rest of media and their potential sources. When a journalist prepared a story on the basis of public statements, the authors of which had been questioned by the investigation themselves, it is unclear what additional valuable information may any specific journalist have and what interest may investigation have towards him or her. Even more concerning is simultaneous summoning for questioning of two journalists of the same TV company on two different cases. Such approach, which has demonstrative purpose rather than substantial one, can have negative impact on editorial freedom of journalists and effectiveness of investigation journalism.
In the cases when investigation agencies are interested in the information in possession of a journalist, they must conduct the process of investigation with full respect towards protection mechanisms envisioned by the law.Otherwise, their actions can have chilling effect and hinder confidential sharing and publicizing of information in the future.
Criminal Procedure Code of Georgia, Article 50, Paragraph 1, Subparagraph H
The Law on Freedom of Speech and Expression, Article 1, Subparagraph N
The Law on Freedom of Speech and Expression, Article 11 (1)
The Law on Freedom of Speech and Expression, Article 11(2)
Goodwin v. United Kingdom, 27 March 1996, Application No. 17488/90, para. 39.