The Council of Europe recommends sanctions for refusals of disclosure of sources of information to be imposed by courts only.
The legislative systems of the region are highly protective of the sources of journalistic information. However in Bulgaria such provisions are implemented only in the Law on Radio and Television, attorney Alexander Kashamov explained during the “Protection of the sources of information: problematic cases and recommendations” workgroup. The event was organized by the Association of European Journalists – Bulgaria and was held last Tuesday in the „Red House“ Center for Culture and Debate.
During the discussion journalists Stoyana Georgieva (Mediapool), Maria Dimitrova (ZOV news), Asen Yordanov (Bivol) and Nicolay Stoyanov (Capital) shared their views on the proceedings led by the Financial Supervision Commission (FSC) against their respective media in pursue of disclosure of their sources of information.
Part of these proceedings resulted in record high fines despite the recommendation of the Council Europe – Prof. Neli Ognyanova recalls – that sanctions on refusals for disclosure of sources of information should be imposed by courts only. Alexander Kashamov emphasized on the fact that there are lots of other commissions in Bulgaria, who report to the National Assembly like the FSC and the possible effect of a decision on their part to act as the FSC.
“We realized for the first time that the FSC has the authority to enforce fines on media during the autumn of 2014 when we received two consecutive letters from the FSC requesting a disclosure of our sources of information in connection to a publication describing large queues in front of the local office of First Investment Bank”, said Maria Dimitrova, ZOV news, Vratsa. “With those letters we were informed that we have the right to refuse but in case we do so we would be a subject of a fine.” Although ZOV news disclosed their sources – morning talk-shows on the national TV stations, PIK news agency and a local newspaper – Konkurent, all of which published on the same topic, the FSC imposed a record high fine – 100 000 leva.
Nikolay Stoyanov, Capital, informed the public on the two consecutive sanctions totaling 150 000 leva, imposed by the FSC on the media based on allegations of market manipulations. “The Commission exclusively pointed out that neither journalists from the media, nor people linked to the publishers have benefited in any way from the publications”, Stoyanov underlined. According to him state institutions targeted the easiest victim to ensure silence - thus comfort for themselves.
Asen Yordanov from Bivol is positive that the FSC and the National Bank are operating in favor of particular private interests. “We are witnesses of one of the biggest robberies after 1996 – 1997. We have all seen what happened with the Corporate Commercial Bank. The plunder of this bank was done with the cooperation of the National Bank. Those are state institutions that are under no control. A small particle of the media in Bulgaria is struggling for the truth whereas most of the sector is catering for the oligarch model. Back in 2012 when we in Bivol published information that no one else dared to at that time, the National Bank tried to initiate a punitive procedure in accordance to the Law on Credit Institutions on us. Their move was followed by a sharp reaction of Reporters Without Borders who not only criticized the National Bank but also pointed that the Law itself is not in accordance with the EU standards. Subsequently we requested the letter that the National Bank based its actions on – allegedly sent from four Bulgarian banks. So far, three years after that moment, we still have not received this document.
Now we face another attack from institutions that in my opinion do not serve society’s best interest. Two months ago we filed a signal to the National Bank informing them that yet another bank is being robbed as the Corporate Commercial bank was. As a response we got a letter from the FSC asking us to disclose are sources. It is such an incompetent reaction from an institution obliged to investigate. 5 % of the whole economy of the country was stolen. As a result Reporters Without Borders had three separate dispatches on Bulgaria. The country dropped to 106th in the Annual Press Freedom Index.”
Stoyana Georgieva, Mediapool, confirmed that the media was sanctioned on accusations for mixing the name of Delyan Peevski with First Investment Bank in a publication. “Banks have turned into sacred cows”, she says. “We were accused by the FSC that we failed to inform ourselves from the National Audit Office website that Delyan Peevski does not own any bank accounts or other assets. I am not an optimist that would sound the alarm for anyone in Bulgaria”, she adds.
Protection of sources of information standards
In some countries like Bosnia and Herzegovina and Montenegro the protection of the sources of information is absolute. In others it is relatively weaker but still disclosure of sources is required in extremely limited number of situations, said attorney Alexander Kashamov. It is written in the Bulgarian Media Ethical Code that “We would not violate the secrecy of sources”. It would be beneficial if the Journalistic Ethics Committee comes out with a statement which highlights that principle, Kashamov, the Director of the Legal Team of Program “Access to Information”, said.
Attorney Kashamov commented on the fines imposed by the FSC. In his opinion, having in mind that back in 1945 the General Assembly of the UN confirmed that the freedom of information is a basic right, the fact of these fines happening in 2015 only leads to a conclusion for a lack of knowledge of cultural standards. “During the communist period when someone signaled for a possible crime committed by a high – ranking official, it was practice that the prosecutor would go on to investigate the sender of the signal. This is such a totalitarian practice”, Kashamov said.
Prof. Neli Ognyanova thinks that prior to requesting disclosure of the sources of information, the respective institution had to perform a balancing test in order to establish whether there is an overriding public interest to be protected. She gave an example from the case – law of the European Court of Human Rights (ECHR) where journalists who were gathering information for a pedophile organization were forced to disclose their sources of information. In that case the ECHR found an overriding public interest which allowed for the authorities to request such information. However in many other cases the ECHR protected the right of journalists not to announce their sources.
“For a request for disclosure of sources to be justified there should be no other way of acquiring the truth. Let us say that I have e reasonable guess on the sources of information of ZOV news, then in such case there would be no need to send a formal request for disclosure to the media. This is not only stipulated in a Recommendation of the Council of Europe but is also commonsense”, Prof. Ognyanova said.
Here are some of the standards that the ECHR applies when decides on cases concerning disclosure of sources of journalistic information:
1. The existence of overriding public interest that needs to be protected;
2. The existence or absence of alternative ways to obtain the necessary information;
3. Whether the institution requesting the disclosure is a side in the case/ proceedings;
4. A preliminary assessment of the situation was performed.
According to Prof. Ognyanova neither one of these steps was followed by the FSC in the debated cases. She gave an example with the so called “Reynolds test” for protection of responsible journalism, introduced by British supreme judges in a decision of the House of the Lords back in 1999.
“If it is not Mavrodiev 1, it is going to be Mavrodiev 2 – the issue does not lie in the person but in the structural problems; politicians often like to describe the problems as interpersonal. For instance, the case with the record high fines imposed on Capital results from personal issues between the media and Stoyan Mavrodiev. The role of the journalist here is to expose the structural issues and push for reforms”, Prof. Ognyanova insists.