The law enforcement attack on the BNS news agency journalists took place 11 years after the Lithuanian Constitutional Court delivered its interpretation of when a journalist must disclose a source of information. But it seems that was still too little time for interpretation to be carried over to the law.
Lithuania has not yet formed a satisfactory body of case-law on source disclosure by journalists. The reason is simple – over a decade, the number of high-profile cases in which the court has demanded disclosure of sources can be counted on the fingers of one hand. Other examples existed but were ‘informal’, when prosecutors met face-to-face with a journalist and tried to establish where their scandalous information came from.
The absence of judicial practice regulation and unclear legislation allows prosecutors and judges to deal quite freely with when and how they can require a journalist to disclose a source of information. That is exactly what happened in November 2013, when law enforcement launched an attack against the largest Lithuanian news agency, BNS.
On 31st October 2013, BNS reported on secret information collected by the State Security Department (SSD) that Russia was working on a disinformation campaign against Lithuania and its president, Dalia Grybauskaite. SSD did not immediately react to the leak of secret information. On the same day, the SSD’s general director Gediminas Grina even commented to journalists that information attacks prepared by Russia against Lithuanian top officials could become more active in the near future.
But after a couple of days, things changed a lot. The General Prosecutor’s Office started a pre-trial investigation on the leak of secret information. A court obliged journalists to disclose where they got their information. On November 7th, Special Investigation Service (SIS) officers took two BNS employees – editor Jurate Damulyte and journalist Jurate Skeryte in for interrogation. Several computers were taken from the BNS offices. More journalists from BNS were called to interrogation. Even IQ magazine’s editor of political affairs Tomas Janeliunas was interrogated. He didn’t have any contacts with BNS, but a couple of days earlier he had visited the office of the president to talk about a possible interview with Grybauskaite.
When Jurate Damulyte refused to disclose her source, the SIS searched her house while two of her children looked on. Her colleagues had to take care of a third child who was stranded in kindergarden while Damulyte was interrogated, a process that took around six hours, during which time she was not permitted to call anyone to arrange for her child to be collected from the kindergarden. As a result of the stress she was subjected to, Damulyte required medical assistance.
This was not the only time when SIS displayed its total disregard for the welfare of children. Officers wanted to interrogate Damulyte’s husband too. He asked for the request to be sent to his office. But instead an SIS officer for some reason went to Damulyte’s house, waited until her 9-year-old child returned from school and handed the summons to interrogation to the child.
Broken Protection
The BNS case was one of the most dramatic attacks against media witnessed in Lithuania. However it was not first time attempts have been made to force a journalist to disclose their source.
By 2002, journalists in Lithuania who received secret information, could feel quite confident . They could refuse to disclose a source of information, and it was unlikely they would face further consequences for doing so. However in October 2002, a Constitutional Court decision made it clear that the protection of information sources was not absolute. According to the ruling, compulsory disclosure of sources is legitimate only when it is necessary to ensure vital or other particularly significant public interest.
This is broadly in line with the European Court of Human Rights interpretation that a source can be revealed only when the public interest is greater than the damage that would be done to the freedom of the press. The protection of journalistic sources is one of the most important preconditions for the freedom of the press. This is not only in the professional interest of journalists, but also in the public interest, because sources will only provide relevant and important information to the public when they are certain they will not suffer as a result.
Part of the Lithuanian Constitutional Court interpretation ended up in Mass Media Law: journalists have a right to not disclose the source of information, unless a court decides that disclosure is necessary for a vital or other particularly significant public interest. On the one hand, such a formulation defines when the disclosure of the source is necessary. On the other hand, it left a plethora of room for interpretation of what may be called “vital”, and even more – what constitutes a “significant public interest”.
The Lithuanian Constitutional Court also noted that journalists may be required to disclose their source only when all other means have been exhausted. This provision has not made it into law so far. This has emboldened prosecutors to choose the easiest method: to immediately ask judges to oblige journalists to disclose the source of information.
“The aim is to go the easiest way,” says Dr. Lijana Štarienė of Mykolas Romeris University, International and EU Law Department.
Attorney Kestutis Švirinas, partner at the Sorainen law firm, adds that the obligation to disclose the source is not “the most effective means” and that officials have alternative means of gathering information.
After receiving the obligation from the court, the reporter has no practical means of defence. “The enforcement of a decision to reveal the source of information is not suspended while such a decision is being appealed,” notes Štarienė.
The reporter can refuse to disclose the source. However, as shown by the BNS events, the obligation to disclose the source may be accompanied by a search warrant – one of the most rigorous means of exerting pressure. Warrants are issued almost immediately.
The First Test
The first opportunity to test the protection of sourced following the Constitutional Court interpretation occurred a year later. In October 2003 TV3 television broadcast a report about the preparation of a joint Lithuanian-Russian project dubbed “2K”. The aim of the project was to evenly distribute the flow of goods between the ports of Klaipeda and Kaliningrad. Remigijus Bielinski was the journalist who put the story together using information from a report obtained from SSD and asked if the project might prove harmful to Lithuania.
After the broadcast Bielinski was called upon in court to reveal who gave him the 2K report. Despite the fact that the Constitutional Court interpretation had been published the year before, the law had not yet been enacted. Therefore, based on the old public information provision of the law, the journalist refused to disclose his source.
After this case the uproar over protection of sources subsided, although by then there was a lot of criticism for the Constitutional Court which was seen as attempting to undermine the fundamental principle of freedom of speech.
The next landmark date is 2006, when SSD officials detained “Laisvas lakraštis” publisher Aurimas Drižius. At that time, the effort of the SSD was not precisely to find the source, but to stop the disclosure of sensitive information. “Laisvas laikraštis” was going to reveal information supposedly collected by SSD about political corruption at the highest levels of Lithuanian politicals. Allegedly, there was evidence that Social Liberal leader Arturas Paulauskas and former Social Democratic Prime Minister Algirdas Brazauskas were receiving money from business groups.
SSD raided the weekly’s editorial office, took computers and the editions of the newspaper. Drižius was arrested, but released the next day. Security officers also launched an internal investigation to find out which of their number could have released a state secret.
This SSD raid received widespread publicity. President Valdas Adamkus responded, naming the SSD actions as “in conflict with the fundamental principles of democracy”. If the SSD really wanted the public to be kept in the dark about a state secret, it scored a notable own goal. The newspaper’s popularity was low and it was not generally considered a very reliable source of information. By attacking Drižius, the SSD in fact drew far more public attention to “Laisvas laikraštis” and the sensitive information than would otherwise have been the case.
“Probably someone’s patience ran out” – one Lithuanian publisher commented.
Whatever the true motives of the security officers, the scandal was a useful reminder for the media. It became obvious that attacks on media by officials would prompt significant negative reaction.
After Five Years Of Silence
Following the Drižius case, there were no major scandals in Lithuania about the disclosure sources for five years. Then two occurred in 2011. A journalist at the “Lietuvos rytas” newspaper, Laima Lavaste, published an article in April in which a judge talked about corruption in courts: how judges could be bought, and how the attorneys, prosecutors and judges arranges sentences in advance. The name of the judge who provided the information was not revealed in the article.
Supreme Court judge Jonas Prapiestis responded to the publication. However, he was not interested in the facts revealed in the article, but the journalist’s source. He requested that officials launch an investigation. First, Lavaste received a summons to questioning by the Special Investigation Services. She refused to reveal her source of information.
Then the prosecutors went to court and obtained an order to reveal the source. Lavaste refused to do so. The journalist was threatened with fines, but she did not give in. Prosecutors eventually relented and withdrew their claim.
The requirement to disclose the source was based on a stated aim to protect the reputation of the judiciary. However, legal expert Dr. Lijana Štarienė notes that according to the European Court of Human Rights, the aim to protect the good name of the courts or the police is not a sufficient argument to force a source to be revealed.
The Struggle Over Snoras
In the same year, 2011, another scandal rose to prominence when in November, the daily “Lietuvos rytas” published an article on its first page with the headline: “The Order: trample Lithuanian banks”. It disclosed plans for legal action against an unnamed bank. Allegedly, managers of the bank were to be detained, and then the court was to be asked that they would be placed under formal arrest.
“I don’t want to participate in one of the darkest actions in Lithuanian history. What is planned is inconceivable, it defies common sense and any principle of law,” the newspaper quoted an anonymous senior law enforcement officer as saying. The next day, Snoras bank (a 34% shareholder in “Lietuvos rytas” via a subsidiary company) was nationalized. Then the questions began about who leaked the confidential information to the newspaper.
The effort to find the source was intense. Following an investigation by the SSD, Minister of Internal Affairs Raimundas Palaitis dismissed Financial Crime Investigation Service Director Vitalijus Gailius and his deputy Vytautas Giržadas. It was suspected that the latter had leaked information to “Lietuvos rytas” journalist Arvydas Lekavičius.
The government nearly collapsed over Palaitis’ decision to dismiss the pair as some coalition partners opposed the action. Finally, Palaitis himself resigned.
Later, the court found that Gailius and Giržadas had been wrongfully dismissed. Gailius is currently a Member of Parliament.
But the story of the leak did not end there. Even though three months had already passed since publication, the General Prosecutor’s Office decided to launch an investigation into the leak. At this point official eyes turned towards the journalist, Lekavičius. He was pressed to reveal his source.
According to an article in “Lietuvos rytas”, officers suspected that the then FCIS Deputy Director Giržadas forwarded information to the journalist. The allegations were based on the analysis of phone calls. Although there were no direct conversations, it was found that on one occassion both men visited the Vilnius Panorama shopping centre at the same time. Yet while the investigation continued, Snoras’ fate was already clear – the bank’s activities were suspended, and bankruptcy proceedings were begun. Disclosure of the source was not likely to bring any substantial benefits to society – it would rather merely satisfy the curiosity of certain officials or politicians. But Lekavicius was still questioned, as well as other “Lietuvos rytas” editorial staff, and others who had communicated with Lekavičius. Some people called for questionings had no doubt that officials knew about their connection to Lekavičius as a result of listening in on phone conversations.
For refusing to disclose the source, Lekavičius was punished with a fine of 1950 litas (560 euros) by court. He plans to appeal this decision to the European Court of Human Rights.
A Chance To Squeeze Journalists
Another court order to disclose sources of information was served less than two years after the “Snoras” case – the BNS case mentioned above. This time the reaction was quick and drastic: the court ordered the BNS journalists to reveal the source.
They refused to do so, and the SIS raided BNS editor Jurate Damulytė’s home.
But three weeks after the search Vilnius Regional Court announced that the order to reveal the source and the permit that allowed the search of the journalist’s home were illegal. In addition, the State Security Department reduced the sensitivity level of the information leaked, which in effect reduced the seriousness of the leak itself.
These actions confirmed the fact of what was said immediately after the raid: the actions of officials were inappropriate – especially since the source of the information could be found by other, less drastic, methods.
In the words of lawyer Kestutis Švirinas: “A state secret can be revealed [only] by someone who has the right to work with secrets” – so the best place to look for leakers is among on the other side, not among journalists.
If such actions are clearly inappropriate, one can only start guessing what the real motive for the attacks against BNS was. Knowing that some law enforcement officials as well as politicians do not like journalists writing about them unfavourably, it can be said that the order for disclosure of the source and especially the raids at home were tools to intimidate the media.
In the BNS case, a higher court ruled that obligation to disclose the source and to search the journalist’s house were illegal. But the search had already been executed and journalists had spent hours under interrogation. Next time, knowing that publishing sensitive information may result in house searches, some journalists may think twice before carrying out their duty.
True, there is also a positive aspect. At last, amendments to the laws governing the protection and disclosure of sources are being prepared. These amendments were prepared by the presidential office – the same presidential office which was involved with the leaked information.
According to an amendment to the Mass Media law, journalists can be obliged do disclose his or her source only when all other measures to discover the source have been exhausted.
Amendments to the Criminal procedure code determine in detail how decisions to disclose sources should be made. A person who is to be obliged to disclose a source must be invited to a court session. The court, in its decision to demand disclosure, should indicate the exceptional circumstances which require to disclosure to protect vital or other important interests of society, and to protect constitutional rights and justice.
The court should also indicate why it is impossible to discover the source by other means or that these means have been exhausted already.
Mykolas Romeris University Associate Dr. Lijana Štarienė believes that the new amendments are good, but that they will not solve all associated problems. “The problem is not the regulation, but rather the application. Everything can be written in the law, but it will not prevent judicial mistakes,” says Štarienė. However, she does believe that after the uproar surrounding the BNS case, courts will be more careful in deciding to demand disclosure of information sources.
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