Supreme Court victory for freedom of the press

Halvard Helle and Trine Skjelstad Jensen of Schjødt have represented Fædrelandsvennen and Norsk Redaktørforening in the case.

The Supreme Court has now ruled for the first time that an order to disclose reader history and IP addresses from readers constitutes an interference in freedom of the press under Article 10 of the ECHR and Section 100 of the Norwegian Constitution. It was already clear that orders to disclose information from journalistic sources and unpublished material constitute such an interference.

In its recent ruling, the Supreme Court goes one step further by recognising the right of the press to protect newspaper readers' expectation of anonymity.

The Supreme Court emphasized that criminal procedural measures that compromise reader anonymity create a real risk of chilling freedom of expression. Readers may - consciously or unconsciously - refrain from consuming published material because their choice of media may become known to the police.

• The less certainty a reader has of remaining anonymous, the easier it will be for them to refrain from reading what the press publishes, in which case the dissemination and reception of information may be hampered, the Supreme Court ruled unanimously.
   

The case concerned information about subscriber information and reading history for one user who was charged with starting a fire in an industrial premises outside Arendal last summer. The police demanded that Fædrelandsvennen disclosed such information because his interest in the fire could have a bearing on the investigation.

A person charged in a criminal case can only to a very limited extent claim that privacy considerations should hinder the investigation. Even in such a situation, the Supreme Court found that the disclosure order was disproportionate, in this case because the accused himself had admitted to being behind the arson.

The Supreme Court's clarifications will prevent disclosure orders that cover IP addresses and reading history for several readers, or all readers who have read a particular article. The threshold for such access will be very high. The decision therefore helps to protect the right of ordinary readers to receive information without being scrutinised. The Supreme Court ruling clearly states that a stricter proportionality requirement applies in these cases. 

This means that the police must formulate their extradition requests soberly and purposefully, so that the negative effect on freedom of expression is limited. 

The Supreme Court introduces a three-step approach to the specific, stricter proportionality assessment:

• Firstly, it must be assessed, particularly on the basis of the seriousness of the criminal offence and the probative value of the information requested, how strong the societal needs are. 
   
• Secondly, based on how invasive the order is, a judgement must be made as to how severely the order affects the protected interests - the press's right to disseminate news and citizens' right to receive information. The consequences for privacy must also be taken into account, insofar as they are related to freedom of expression. 
   
• Finally, an overall assessment must be made of whether the order, taking all factors into account, affects freedom of expression in an unacceptable way and is therefore a disproportionate interference.
   

In the assessment of the consideration of freedom of expression in the specific case, the Supreme Court emphasised that the disclosure order was only aimed at one charged person, and concerned three days of reading history and IP addresses linked to a single telephone number. However, the interference with freedom of expression could not be accepted. Although the information may have had some evidential value for the police, this evidential value was weakened following the defendant's admission of having started the fire referred to in the article. The interference with freedom of expression was disproportionate, and the Court of Appeal's order to disclose the information was cancelled.

There is no doubt that the Supreme Court's premises and conclusion will be of great importance to Norwegian media organisations. The decision strengthens the right to receive information without interference from public authorities, and gives the media considerably stronger protection against disclosure orders than would otherwise have followed from traditional Norwegian criminal procedure