An interesting court case related to Dutch intelligence matters reached its conclusion today, picking up quite some media coverage, such as from Steven Derix in NRC Next. The high-profile case in Haarlem was against an AIVD officer and her ex-AIVD partner concerning their alleged leaking of classified documents on Iraq to the Telegraaf, resulted in victory for the defendants. The court ruled that journalists have a right to protect the identity of the sources of their information. As lawyer Van den Elzen emphasised, ”this is a good day for press freedom,” not just for journalists but also for their potential sources.

This judgement was more or less a confirmation of an Amsterdam court ruling and the views of the Advisory Committee on Intelligence and Security Services (CTIVD) at the end of 2009. The reaction of the AIVD to the Telegraaf’s publication of a criticial article based on leaked material, which involved tapping the phones of Telegraaf journalists in order to find the source of the leak, was then ruled to be illegal and ”disproportional”.

By upholding these previous judgements, the Haarlem court effectively ruled that the evidence against the two defendants – entirely based on material obtained from the telephone taps – was also inadmissable. The court therefore stated that while it could not address the work of the AIVD per se, it could – and would – address whether the AIVD obtained its information in a legal manner. This was not so. As a result, the case would not proceed any further.

The immediate sense is that this could be an important signal for potential whistle-blowers in the future. Sources are protected – the investigative journalist is a trustworthy channel through which information can be leaked. It is true that the state prosecutors declared immediately that they will appeal and take the case to a higher level. But as lawyer Inez Weski retorted, that means returning to the Amsterdam court that delivered the original critical ruling last year, so the judges would have to overturn their previous judgement.

The question is whether the AIVD is still able to successfully push the case under the heading of national security. The prosecution tried to do so at the opening of the case in Haarlem by claiming the necessary right of the state to set an example against those who leak classified information, and also the damage that this can do to an intelligence service if it is deemed untrustworthy by partners in other services or potential partners in civil society. The court accepted that there will sometimes be cases where the rights of journalists to protect their sources will have to weighed against the demands of national security. What is interesting so far is that the law iss insisting on addressing the needs of national security on a case by case basis – there will be no blanket ruling that any material leaked will automatically allow the state to throw the book at the alleged offender(s). This particular case has not been deemed important enough for the prosecutors to use it in order to prevent future embarrassments. But if I get this right, neither are the courts saying ’we protect the freedom of the press in every single case.’ So the ‘victory for the whistle-blower’ headlines going around are true, but only until the next battle.