In an unforeseen and unrelated coincidence, the Italian Court of Cassation and the Criminal Court of Lisbon have recently delivered two verdicts that could potentially impact investigative journalism based on “leaks” and the platforms that facilitate their circulation By Andrea Monti – Initially published by Wired.it
Both courts confirmed the principle that freedom of the press does not justify committing crimes to obtain information. At first glance, this principle may seem perfectly acceptable. However, a loose interpretation of the Penal Code could extend liability to those who organise platforms for receiving anonymous tips, even if they are professional media.
The Portuguese verdict on the Football Leaks
On 11 September 2023, the Tribunal Judicial da Comarca de Lisboa – Juízo Central Criminal de Lisboa sentenced Rui Pinto, the hacker behind the “Football Leaks”, to four years in prison. He was found responsible (in the first instance) for hacking into the systems of an investment fund, the Prosecutor General’s Office and a law firm in the Portuguese capital. He was also charged with email interception and attempted extortion.
According to the verdict, the vast amount of data stolen by Pinto (amounting to 18 million files and nearly two terabytes of data) revealed instances of tax evasion (potentially illegal from a tax perspective) and breaches of UEFA’s Financial Fair Play rules. However, it also contained completely neutral information, such as athletes’ salaries and the contents of confidential sports contracts, which is not necessarily illegal.
The information was sent on two hard drives to Rafael Buschmann, editor at Der Spiegel, who, together with other major European newspapers and magazines who are members of the European Investigative Collaborations, analysed it to identify journalistically relevant information hidden in this vast trove of data.
The defendant had argued that he was a whistleblower acting “in the public interest” and therefore believed his actions were legally justified. However, the court did not accept this defense because the evidence showed that the attacks were launched to obtain information before knowing its content.
As we shall see, this is a crucial point in the whole argument.
The Italian Court of Cassation’s Verdict
Less than two weeks before the decision in the Pinto case, the Fifth Criminal Chamber of the Italian Court of Cassation, in its decision 36407/23 published on 31 August 2023, reaffirmed a legal principle previously established in other decisions. According to this principle, the defence of the exercise of the right to report the news applies only to the publication of the news itself and does not extend to the methods used to obtain it.
In other words, if a journalist publishes accurate, legally obtained news and reports it correctly, no crime is committed. However, if the journalist obtains accurate news by breaking the law (alone or in collaboration with others), he or she cannot invoke the defence of freedom of the press, because legal protection only covers the decision to publish or not to publish the article.
The legal issue
The “systematisation” of the principles expressed in these rulings and their alignment with the rules of criminal liability create a situation that could make it extremely difficult and risky for professional media to carry out investigative journalism using anonymous sources and directly managing Wikileaks-like platforms.
Although the legal reasoning is much more complex, it can be summarised in two key points: limiting the use of information gathered and disseminated independently of the journalist’s involvement, and using platforms to receive information and documents while ensuring complete anonymity for whistleblowers.
Is republishing leaks legal?
On the first point, as long as critical information (as seen not only in the Pinto case but also, more prominently, in the case of Chelsea Manning) is independently leaked by a third party and then reused by the media without any direct involvement in its dissemination, it is difficult to imagine any liability for those reporting the information. As a result, the leaker may face legal action, while the journalist and the media outlet that used the information are highly unlikely to suffer the same fate.
Is it legal to facilitate the collection of leaks?
While the division of responsibilities between whistleblowers and journalists is generally clear, the same cannot be said for a leak distribution platform directly managed by a journalistic entity.
As mentioned above, the Lisbon court denied Pinto whistleblower status because he illegally obtained information before knowing its content. Moreover, as a general principle, knowingly facilitating the commission of a crime or accepting the risk that one’s behaviour may enable a crime to be committed can lead to criminal liability. We are, as a legal expert might say, somewhere between incitement to commit a crime and complicity in a crime with conditional intent.
Therefore, managing a platform that allows the anonymous publication of information, regardless of whether it relates to crimes or atrocities, but simply because it is secret, could mean, on the one hand, accepting the possibility of receiving messages that one should not have received and, on the other hand, encouraging the commission of crimes in order to obtain them, thanks to the guarantee of anonymity, in effect becoming an accomplice to the perpetrator of the crime. This is an accusation that a zealous prosecutor (or a particularly motivated and financially able victim) could make.
A Possible Defense
A media organisation could pre-emptively defend itself by carefully selecting the importance of the news and limiting the use of leaks to matters of such gravity that it becomes clear that the right to inform cannot be compromised. However, this would mean, conversely, that all information obtained illegally and relating to events that are not of exceptional importance should be destroyed immediately.
This defence strategy would not be easy to implement and would, in any case, severely restrict journalistic activity. It would therefore be up to each editor to assess, on a case-by-case basis, whether to risk possible legal action in order to raise the issue of freedom of information before the Constitutional Court.
However, this approach may not be desirable, as the time frames and uncertainties of court rulings could lead to a stable solution – the so-called “constant orientation” of jurisprudence – only after several decades. Moreover, it should be borne in mind that judges are not obliged to follow these “orientations”, the direction of which could change without notice. Do We Need a Law for Investigative Journalism?
Protecting Investigative Journalism
It is clear that if the guidelines of these rulings were to be consolidated not only in our country, but also throughout the EU, a single trial framed in this way could jeopardise the very survival of a media outlet, especially when one considers that pre-trial detention and the use of wiretaps are provided for in the most serious offences.
The digitalisation of reality has enormously increased the ease with which information that should remain secret can be obtained and disseminated. It is also a fact that the indiscriminate dissemination of terabytes of leaks, without necessarily paying attention to their content, may reveale not only illegal activities but also information that should “simply” remain confidential. It may therefore indeed be necessary to set a legal limit on the use of leaks, whether few or many, and perhaps to provide for impunity for active journalistic cooperation in gathering secret information that exposes crimes.
Whatever the solution, it is clear that such a law would be very complex to structure, because there is a real danger that it could become a tool of censorship rather than a safeguard for freedom of press.
If we were to consider this possibility, it would have to be handled with extreme care and, politically, with a broad majority in order to achieve a truly sustainable balance between the protection of secrets and the right to know the facts of power.