Source Protection Act in Criminal Matters

On 1 October 2018, the Source Protection in Criminal Matters Act (Bulletin of Acts and Decrees 2018, 264) entered into force. This law grants journalists and publicists a limited right to refuse to give evidence. Furthermore, the Act imposes stricter rules on the use of coercive measures against journalists and publicists in a criminal investigation.

Exemption right
A witness may invoke his right to refuse to give evidence in the context of his interrogation by the examining magistrate during the preliminary investigation or during the interrogation during the court hearing. The right to refuse to give evidence is granted to accused persons who do not have to give evidence and persons who have a certain family relationship with them, and a number of groups of persons who are bound to secrecy by virtue of office or profession (the clergyman, doctor, lawyer or civil-law notary). A witness who refuses to answer the questions raised without legitimate reason may be taken hostage by order of the examining magistrate, if this is urgent in the interests of investigation, until the court has ruled on the matter.
During the examination at the hearing, the court may, if this is urgent in the interest of the investigation, issue a hostage-taking order to the witness who, without legitimate reason, refuses to answer the questions asked.

As a result of the new law, witnesses who, as journalists or publicists in the context of news gathering, have access to the details of persons who have provided these details for publication may be excused from answering questions about the origin of these details. However, this right of the journalist or publicist to give evidence is not unlimited. The judge (commissioner) may reject the witness's appeal to his right to refuse to give evidence if he considers that failure to answer questions would cause disproportionate damage to an overriding social interest.

Application of coercive measures
The new law also aims to equalise the position of journalists and publicists with a limited right to refuse to give evidence with that of those entitled to refuse to give evidence on the grounds of office or profession (the clergyman, doctor, lawyer or civil-law notary) with regard to the collection of data for criminal investigations. This means that the search and seizure of objects and writings at the office of, for example, an editorial staff of a newspaper or weekly magazine is only possible with the permission of and in the presence of a examining magistrate and no longer under the sole authority of the public prosecutor. The examining magistrate can be informed by a representative of the professional group to which the person entitled to disqualification belongs.

Scope of the law
The law on source protection in criminal matters is not strictly limited to those who engage in news gathering entirely professionally or only against payment. The law also applies to publicists who write about political or current affairs. This is in line with the changing nature of free news gathering and the media landscape in recent years. After all, the public debate no longer only takes place in newspapers or on television and radio, but also on social media, for example. It therefore seems that a broader group than just "traditional journalists" can appeal to this provision.