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How fundamental are the cornerstones of the Estonian democracy? Recently, intense discussions have taken place in Estonia concerning the draft legislation on journalists' obligation to disclose sources. In short, the draft legislation presented by the Minister of Justice, Rein Lang, lists a number of exceptions when journalists are obliged to disclose their source to the police, the Prosecutor's Office and the court. Upon failure to do so, journalists risk to be punished with a fine up to 500 daily salaries or one year imprisonment.

Regardless of the opinion about the proposed legislation, its adoption would undoubtedly affect the Estonian legislation regarding protection of journalists' sources. Protection of sources is considered to be a fundamental part of investigative journalism. Investigative journalism is furthermore needed to ensure the freedom of speech and the freedom of press and is therefore one of the cornerstones of the Estonian democracy. The question that therefore arises is; how is it at all theoretically possible to change such a fundamental principle of a democratic society so easily?

To illustrate the issue, a comparison to the Swedish legislation on the matter may be useful.

The Swedish constitution is comprised by four different fundamental acts. Two of those fundamental acts are the Freedom of the Press Act and the Fundamental Law on Freedom of Expression. Those two acts stipulate the fundamental laws regarding the freedom of press and freedom of speech and aims at safeguarding those freedoms being important parts of democracy.

According to the Swedish laws, everyone has the right to right to provide information for publication in media. Such information provider has the right to be anonymous. Furthermore, a person who has received information, e.g. a journalist, has an obligation not to disclose the source of the information. If a journalist breaches this prohibition to disclose the source, the journalist commits a criminal offence, punishable with a fine or up to one year imprisonment. There are a few exceptions to the prohibition to disclose the source; those exceptions are, however, rare and concern cases where the information provider has committed a severe crime, such as treason, and that the provision of information to the journalist constitutes such crime as well. Generally, however, the prohibition to disclose sources applies even if the information provider committed a crime by forwarding the information to the journalist.

Interestingly enough, the Swedish constitution stipulates criminal liability punishable with up to one year imprisonment for journalists who disclose their sources whereas the proposed Estonian legislation provides the same punishment for journalists who do not disclose their sources.

As mentioned, the Swedish Freedom of the Press Act and the Fundamental Law on Freedom of Expression are parts of the Swedish constitution. This means that the acts cannot be changed as easily as other acts; to amend the constitution, the Parliament needs to approve the changes twice in two successive terms, with a general election having been held in between. Therefore, as a comparison, if Rein Lang's legislation would have been proposed in Sweden, two separate parliament decisions were needed with an election between.

In Estonia, however, the protection of sources is not stipulated in the constitution and it may therefore be amended by a decision of the Riigikogu by simple majority. Considering Estonia's approach with freedom of speech and freedom of press as cornerstones of the democracy, it is unfortunate that it is even possible to amend such a fundamental law with only one parliament decision and simple majority vote. Perhaps the Estonian politicians, instead of discussing how to limit the prohibition to disclose sources, should rather be discussing how to safeguard the freedom of speech and press by amending the Estonian constitution.

Karolina Ullman
Tel: (+372) 66 76 440
Karolina.Ullman[at]ee.maqs.com
www.maqs.com

Johan Maunsbach
Tel: (+372) 66 76 440
Johan.Maunsbach[at]ee.maqs.com
www.maqs.com