Lietuviškai
THE CONSTITUTIONAL COURT OF THE REPUBLIC OF
LITHUANIA
RULING
ON THE COMPLIANCE OF ARTICLE 8 AND PARAGRAPH 3 OF
ARTICLE 14 OF THE REPUBLIC OF LITHUANIA LAW ON THE
PROVISION OF INFORMATION TO THE PUBLIC WITH THE
CONSTITUTION OF THE REPUBLIC OF LITHUANIA
23 October 2002
Vilnius
The Constitutional Court of the Republic of Lithuania,
composed of the Justices of the Constitutional Court Armanas
Abramavičius, Egidijus Jarašiūnas, Egidijus Kūris, Kęstutis
Lapinskas, Zenonas Namavičius, Augustinas Normantas, Jonas
Prapiestis, Vytautas Sinkevičius, and Stasys Stačiokas,
with the secretary of the hearing-Daiva Pitrėnaitė,
in the presence of:
the representative of a group of members of the Seimas of
the Republic of Lithuania, the petitioner, who was Žibartas
Jackūnas,
the representative of the Seimas of the Republic of
Lithuania, the party concerned, who was Darius Karvelis, a
senior consultant to the Legal Department of the Office of the
Seimas,
pursuant to Articles 102 and 105 of the Constitution of
the Republic of Lithuania and Article 1 of the Republic of
Lithuania Law on the Constitutional Court, on 23 September 2002
in its public hearing heard Case No. 36/2000 which originated
in a petition of a group of members of the Seimas requesting to
investigate whether Article 8 of the Republic of Lithuania Law
on the Provision of Information to the Public was in compliance
with Paragraph 1 of Article 29 of the Constitution of the
Republic of Lithuania and whether Paragraph 3 of Article 14 of
the same law was in compliance with Article 22 of the
Constitution of the Republic of Lithuania.
The Constitutional Court
has established:
I
On 2 July 1996, the Seimas adopted the Republic of
Lithuania Law on the Provision of Information to the Public
(Official Gazette Valstybės žinios, 1996, No. 71-1706). On 29
August 2000, the said law was altered and set forth in a new
wording (Official Gazette Valstybės žinios, No. 75-2272;
hereinafter also referred to as the Law).
The group of members of the Seimas, the petitioner,
requests to investigate whether Article 8 of the Law on the
Provision of Information to the Public is in compliance with
Paragraph 1 of Article 29 of the Constitution, and whether
Paragraph 3 of Article 14 of the Law is in compliance with
Article 22 of the Constitution.
II
The request of the petitioner is based on the following
arguments.
1. The principle of equality of all persons before the
law, the court, and other state institutions and officers is
entrenched in Paragraph 1 of Article 29 of the Constitution.
Article 8 of the Law on the Provision of Information to
the Public consolidates the right of the producer and imparter,
of the owner of the producer and/or imparter of public
information and of the journalist to preserve, without any
reservations, the secret of the source of information and not
to disclose the source of information. The petitioner doubts
whether the norm establishing such an absolute right is in
compliance with Paragraph 1 of Article 29 of the Constitution,
since in other laws the rights of similar content are
restricted by the reservations that the data, information or
other facts must be disclosed provided the court, prosecutor's
office and other state institutions of law and order demand
this in connection with the existing criminal or civil cases
under their jurisdiction, as well as in the other cases
provided for by laws.
In the opinion of the petitioner, Article 8 of the Law
establishes a privileged situation of the producer, imparter
and other entities pointed out therein, they are granted more
rights that other natural and legal persons.
The petitioner notes that the principle of the secret of
the source of information is evaluated as one of the basic
guarantees of the freedom of the press, the said principle is
established in international legal acts. On the other hand, the
Convention for the Protection of Human Rights and Fundamental
Freedoms (hereinafter also referred to as the Convention) does
not obligate to establish the principle of absolute secret of
the source of information of the media in domestic laws. It is
recognised that the public interest may require that such a
secret be disclosed when this is connected with the preparation
or commission of a grave crime. Paragraph 3 of Article 25 of
the Constitution also consolidates certain restrictions on the
right to impart information, which are determined by the
necessity to safeguard the health, honour and dignity, private
life, or morals of an individual, or to protect constitutional
order. The petitioner draws one's attention to the fact that
the second paragraphs of Articles 294, 295 and 296 of the
Criminal Code of the Republic of Lithuania (hereinafter
referred to as the CC) do not provide for the secret of the
source of information as the ground of the pardon from criminal
responsibility for the crimes specified in the said articles,
either.
The petitioner also doubts whether the absolute right,
entrenched in Article 8 of the Law on the Provision of
Information to the Public, to preserve the secret of the source
of information and not to reveal the source of information does
not create pre-conditions to abuse the said right, or whether
it does not induce to act in an irresponsible or unprofessional
manner, since even the court may not obligate to disclose the
source of published information. The petitioner also doubts
whether the disputed provision of Article 8 of the Law does not
hinder the implementation of the constitutional provisions on
the legal protection of the dignity of an individual (Article
21 of the Constitution) and the right of an individual to
privacy (Article 21 of the Constitution).
2. Paragraph 3 of Article 14 of the Law provides that
information about the private life of the person may be
published without the consent of the latter, in cases when the
publication of the source of the information does not inflict
damage on the person, as well as that the information about the
private life of the public person (state politicians, public
servants, heads of political parties and public organisations
as well as other persons participating in public and political
activities) may be published without the consent of the latter
provided this information discloses the circumstances of the
private life or personal characteristics of the public person,
which are of public importance.
According to the petitioner, Paragraph 3 of Article 14 of
the Law points out greatly unspecified reasons due to which, in
the course of publishing the information about the private life
of a person, the principle of the inviolability of the private
life of an individual, entrenched in Article 22 of the
Constitution, may be disregarded; the said reasons can be
interpreted in a varied manner. In the opinion of the
petitioner, the notion "public person" employed in disputed
Paragraph 3 of Article 14 of the Law is not clearly defined and
has an "evaluative shade", since not only state politicians are
attributed to public persons, but also the other persons
participating in social and political activities. Thus, on the
grounds of the bases established in Paragraph 3 of Article 14
of the Law, the private lives of many individuals may become
the object of general scrutiny.
III
In the course of the preparation of the case for the
judicial consideration, a written explanation of the
representative of the party concerned D. Karvelis was received.
1. In the opinion of D. Karvelis, Article 8 of the Law
would be in conflict with the Constitution only in the case
that if a certain group of persons to whom this legal norm is
designated, if compared to the other addressees of the same
norm, were assessed in the said article in a different manner,
although there are not any differences of such nature and
extent between the said groups so that such an assessment would
be objectively justifiable. According to the representative of
the party concerned, the activities of the producer and
imparter of public information, and of their owner, or of the
journalist are different form those of, e.g. the advocate,
notary or physician, and their activity is regulated by
different legal acts. Therefore, the argument of the petitioner
that the right established in Article 8 of the Law to preserve
the secret of the source of information and not to disclose the
source of information, even though in other laws the rights of
similar content are restricted on certain conditions, is
inconsistent with Paragraph 1 of Article 29 of the
Constitution, is groundless.
2. According to D. Karvelis, the principles of the freedom
of information, thus, of the freedom of the source of
information as well, are enshrined in Article 25 of the
Constitution. The representative of the party concerned
maintains that the right to seek, obtain and impart information
must be assessed together with the other rights, while taking
account of the fact, as to which right is more important in a
particular case. According to the representative of the party
concerned, the legislator has legitimised more than once the
superiority of the public need in cases of seizure of ownership
from a private person. The provision of the disputed provision
of Article 8 of the Law on the Provision of Information to the
Public which, in the interest of the information for the
public, raises the secret of the source of information above
the other interests, is an analogous one, too.
3. The right to the freedom of information is entrenched
in Article 10 of the Convention for the Protection of Human
Rights and Fundamental Freedoms, which is analogous to Article
22 of the Constitution. The representative of the party
concerned points out the 1996 case Goodwin v. United Kingdom
considered by the European Court of Human Rights, in which the
Court defended the right of the journalist to the secrecy of
the source of information and held that, having regard to the
importance of the protection of journalistic sources for press
freedom in a democratic society and the potentially chilling
effect an order of source disclosure has on the exercise of
that freedom, such a measure cannot be compatible with Article
10 of the Convention unless it is justified by an overriding
requirement in the public interest.
The representative of the party concerned draws one's
attention to the fact that the 18 January 1994 European
Parliament Resolution on confidentiality for journalists'
sources and the right of civil servants to disclose information
links the right of the secret of the source of information with
the Convention and with such a domestic policy, which would
permit the courts, while construing Article 10 of the
Convention, to define the freedom of information and establish
such exceptions to the said freedom, which are necessary so
that the other fundamental rights, or such rights as the right
to privacy, be protected in the public interest. In the opinion
of the representative of the party concerned, the disputed
provision of Article 8 of the Law should not be assessed
straightforwardly, but it should be interpreted, while taking
account of the jurisprudence of the European Court of Human
Rights.
4. According to D. Karvelis, the Law regulates only
certain social relations and does not have a higher power than
other laws (e.g. the CC). It is established in Paragraph 3 of
Article 25 of the Constitution that freedom to express
convictions, as well as to obtain and disseminate information,
may not be restricted in any way other than as established by
law, when it is necessary for the safeguard of the health,
honour and dignity, private life, or morals of a person, or for
the protection of constitutional order. The representative of
the party concerned also points out that Article 40 of the
Republic of Lithuania Law on the Bar consolidates virtually an
analogous provision as in Article 8 of the Law on the Provision
of Information to the Public: the advocate may not act as a
witness or give explanations concerning the circumstances which
he has learned in the course of fulfilment of his professional
duties. It is only the court that can decide on the relation of
the legal norms, while construing and applying the legal norms
in every particular case.
5. In the opinion of the representative of the party
concerned, Paragraph 3 of Article 14 of the Law is in
compliance with Article 22 of the Constitution, as the former
virtually establishes the same as Article 22 of the
Constitution, i.e. that interference with the private life is
prohibited save the cases when this is connected with the
office held by the person. Besides, Article 2.23 of the Civil
Code of the Republic of Lithuania regulates these social
relations in virtually the same manner.
IV
In the course of the preparation of the case for the
Constitutional Court hearing, written explanations were
received from V. Vadapalas, Director General of the European
Law Department under the Government of the Republic of
Lithuania, G. Songaila, Chairman of the Commission for Ethics
of Journalists and Publishers, and Assoc. Prof. Dr. E. Šileikis
who works at the Department of Public Law of the Faculty of
Law, Vilnius University.
V
At the Constitutional Court hearing, the representative of
the party concerned reiterated the arguments set forth in the
written explanations.
The Constitutional Court
holds that:
I
On the compliance of Article 8 of the Law on the Provision
of Information to the Public with Articles 25 and 29 of the
Constitution, as well as the constitutional principle of a
law-governed state.
1. Article 8 of the Law on the Provision of Information to
the Public provides: "The producer and imparter of public
information, the owner of the producer and/or imparter of
public information and the journalist shall have the right to
preserve the secret of the source of information and not to
disclose the source of information."
The petitioner requests to investigate whether Article 8
of the Law is in compliance with Paragraph 1 of Article 29 of
the Constitution, as, in his opinion, the right of the producer
and imparter of public information, the owner of the producer
and/or imparter of public information and of the journalist to
preserve the secret of the source of information and not to
disclose the source of information, means that the situation of
the said persons, if compared with other persons, is a
privileged one.
2. Article 29 of the Constitution provides:
"All persons shall be equal before the law, the court, and
other State institutions and officers.
A person may not have his rights restricted in any way, or
be granted any privileges, on the basis of his or her sex,
race, nationality, language, origin, social status, religion,
convictions, or opinions."
3. The relations regulated in Article 8 of the Law, which
is pointed out by the petitioner, are linked with seeking,
reception and imparting information. The right of a person to
seek, obtain and impart information unhindered is entrenched in
Article 25 of the Constitution.
The Constitution shall be an integral and directly
applicable act (Paragraph 1 of Article 6 of the Constitution).
The constitutional right of a person to seek, obtain and impart
information unhindered is inseparably linked with the striving
for an open, just, and harmonious civil society and
law-governed state, proclaimed in the Preamble to the
Constitution. The striving for an open, just, and harmonious
civil society and law-governed state is expressed by the
constitutional principle of a law-governed state, which is a
universal principle upon which the entire Lithuanian legal
system and the Constitution itself are based.
4. Article 25 of the Constitution provides:
"Individuals shall have the right to have their own
convictions and freely express them.
Individuals must not be hindered from seeking, obtaining,
or disseminating information or ideas.
Freedom to express convictions, as well as to obtain and
disseminate information, may not be restricted in any way other
than as established by law, when it is necessary for the
safeguard of the health, honour and dignity, private life, or
morals of a person, or for the protection of constitutional
order.
Freedom to express convictions or impart information shall
be incompatible with criminal actions-the instigation of
national, racial, religious, or social hatred, violence, or
discrimination, the dissemination of slander, or
misinformation.
Citizens shall have the right to obtain any available
information which concerns them from State agencies in the
manner established by law."
5. The constitutional freedom to seek, obtain and impart
information and ideas unhindered is one of the fundamentals of
an open, just, and harmonious civil society and law-governed
state. This freedom is an important pre-condition for the
implementation of various rights and freedoms of the person
which are entrenched in the Constitution, since the person can
implement most of his constitutional rights and freedoms in an
all-sufficient manner only if he has the right to seek, obtain
and impart information unhindered. The Constitution guarantees
and safeguards the interest of the public to be informed.
The provisions of Article 25 of the Constitution are
inseparable from other provisions of the Constitution which
consolidate the guarantees of the freedom of the person to
seek, obtain and impart information unhindered: from the
provision of Paragraph 1 of Article 44 that censorship of mass
media shall be prohibited, from the provision of Paragraph 2 of
the same article that the state, political parties, political
and public organisations, and other institutions or persons may
not monopolise means of mass media, from the provisions of
Paragraph 2 of Article 33 that each citizen shall be guaranteed
the right to criticise the work of state institutions and their
officers, and to appeal against their decisions, and that it
shall be prohibited to persecute people for criticism etc.
6. The freedom to seek, obtain and impart information is
not an absolute one. The Constitution not only consolidates the
freedom of the individual to seek, obtain and impart
information, but also defines the limits of this freedom. For
instance, under Paragraph 4 of Article 25 of the Constitution,
freedom to express convictions or impart information shall be
incompatible with criminal actions-the instigation of national,
racial, religious, or social hatred, violence, or
discrimination, the dissemination of slander, or
misinformation, while under Paragraph 3 of the same article,
freedom to express convictions, as well as to obtain and
disseminate information, may not be restricted in any way other
than as established by law, when it is necessary for the
safeguard of the health, honour and dignity, private life, or
morals of a person, or for the protection of constitutional
order; Article 28 of the Constitution provides that, while
exercising their rights and freedoms, persons must observe the
Constitution and laws, and must not impair the rights and
freedoms of other people.
The values entrenched in the Constitution constitute a
harmonious system, and there is a balance between them. Under
the Constitution, it is not permitted to establish such legal
regulation by which, while consolidating the guarantees for
implementation of the freedom of information, conditions would
be created to violate the other constitutional values and the
balance among the constitutional values. In its ruling of 16
March 1999, the Constitutional Court held that at the junction
of the values protected by the Constitution, decisions ought to
be found ensuring that neither of these values would be denied
or unreasonably restricted.
7. From Article 25 of the Constitution as well as the
other provisions of the Constitution consolidating and
guaranteeing the freedom of an individual to seek, obtain and
impart information stems the freedom of the media. Under the
Constitution, the legislator has a duty to establish the
guarantees of the freedom of the media by law.
8. It needs to be emphasised that the legislator, by
establishing the guarantees of the freedom of the media by law,
must pay heed to the imperative of an open, just, and
harmonious civil society entrenched in the Constitution, the
constitutional principle of a law-governed state, and must not
violate the rights and freedoms of the person. It is not
permitted to establish such legal regulation by laws whereby,
while consolidating the right of the journalist to preserve the
secret of the source of information and not to disclose the
source of information, preconditions would be created to
violate the values entrenched in the Constitution.
Thus, by establishing the right of the journalist, by the
Law, to preserve the secret of the source of information and
not to disclose the source of information, the legislator may
not establish such legal regulation, whereby pre-conditions
would be created not to disclose the source of information even
in the cases when in a democratic state it is necessary to
disclose the source of information due to vitally important or
other interests of society, which are of utmost importance,
also, in attempt to ensure that the constitutional rights and
freedoms of a person be protected, and that justice be
administered, since the non-disclosure of the source of
information might cause much graver effects than its
disclosure. Thus the balance of the values protected by the
Constitution, the constitutional imperative of an open
harmonious civil society, the constitutional principle of a
law-governed state would be violated.
9. It needs to be noted that upon the consolidation of the
right of the journalist to preserve the secret of the source of
information and not to disclose the source of information, in
case the question arises whether the source of information
should be disclosed, one must assess in every particular case
whether by the non-disclosure of the source of information the
values safeguarded by the Constitution would not violated. In a
democratic state under the rule of law, the decision of such
questions is the competence of court. The Constitutional
principle of judicial defence is a universal one
(Constitutional Court ruling of 2 July 2002).
Thus, the legislator, while establishing, by law, the
right of the journalist to preserve the secret of the source of
information and not to disclose the source of information, has
a duty to establish, by law, also that in every case it is only
the court that can decide whether the journalist must disclose
the source of information. When establishing such powers of the
court, the legislator is bound by the concept of the freedom of
the media, under which it is permitted to demand that the
source of information be disclosed only when this is necessary
in order to ensure vitally important or other interests of
society, which are of utmost importance, also, in attempt to
ensure that the constitutional rights and freedoms of persons
be protected, that justice be administered, i.e. only when it
is necessary to disclose the source of information due to a
more important interest safeguarded by the Constitution. Thus,
it is not necessary to disclose the source of information if
the court decides that the interest to disclose the source of
information is not more important than the interest not to
disclose the source of information. In the cases when the
source of information is disclosed, the court, while taking
account of the circumstances of the case, may adopt a decision
on the restriction of the dissemination of the disclosed
information to the public. Thus, by establishing the powers of
court to decide whether or not the source of information should
be disclosed, the legislator may not deny the duty of court,
which follows from the Constitution, in the course of deciding
the issue of disclosure of the source of information, to
assess, in every particular case, whether one requires to
disclose the source of information namely due to the fact so as
to ensure vitally important or other interests of society,
which are of utmost importance, also, in attempt to ensure that
the constitutional rights and freedoms of a person be
protected, and that justice be administered.
It also needs to be noted that the legislator, while
establishing, by law, the powers of court to decide the issue
of disclosure of the source of information, has a duty to
establish such legal regulation whereby the court has to decide
whether the journalist must disclose the source of information
only in the case that all other means of the disclosure of the
source of information have been used.
10. In the context of the case at issue, it needs to be
noted that Article 10 of the Convention for the Protection of
Human Rights and Fundamental Freedoms, which is a constituent
part of the legal system of the Republic of Lithuania,
provides:
"1. Everyone has the right to freedom of expression. This
right shall include freedom to hold opinions and to receive and
impart information and ideas without interference by public
authority and regardless of frontiers. <...>
2. The exercise of these freedoms, since it carries with
it duties and responsibilities, may be subject to such
formalities, conditions, restrictions or penalties as are
prescribed by law and are necessary in a democratic society, in
the interest of national security, territorial integrity or
public safety, for the prevention of disorder or crime, for the
protection of health or morals, for the protection of the
reputation or rights of others, for preventing the disclosure
of information received in confidence, or for maintaining the
authority and impartiality of the judiciary."
The European Court of Human Rights, while noting an
important role of the press in a democratic society, also while
having regard to the interest of a democratic society to
guarantee and protect press freedom, has held that the
restriction of the right of journalists not to disclose the
source of information is justifiable if one follows the
requirements set in Article 10 of the Convention and laws: such
restrictions must be necessary for the protection of the
interests of a democratic society; the hindrance to exercise
press freedom cannot be compatible with Article 10 of the
Convention unless it is justified by an overriding requirement
in the public interest (European Court of Human Rights,
Judgment in the Case Fressoz et Roire v. France of 21 January
1999, Report of judgments and decisions 1999-I). In the Case
Goodwin v. United Kingdom (European Court of Human Rights,
Judgment in the Case Goodwin v. United Kingdom of 27 March
1996, Report 1996-II) the European Court of Human Rights held
that although there is a general public interest in the free
flow of information to journalists, the journalist must
recognise that his express promise of confidentiality may have
to yield to a greater public interest.
It needs to be noted that the jurisprudence of the
European Court of Human Rights as a source of construction of
law is also important to construction and applicability of
Lithuanian law (Constitutional Court ruling of 8 May 2000).
In the 8 March 2000 Recommendation of the Committee of
Ministers of the Council of Europe to member states on the
right of journalists not to disclose their sources of
information it is stated that the protection of journalists'
sources of information constitutes a basic condition for
journalistic work and freedom as well as for the freedom of the
media. It is held in the recommendation that such protection
has its limits and is not absolute as well as it is pointed out
therein that competent authorities may order a disclosure of
the source of information if there exists a public interest and
if circumstances are of a sufficiently vital and serious
nature. The disclosure of information identifying a source
should not be deemed necessary unless it can be convincingly
established that the legitimate interest in the disclosure
clearly outweighs the public interest in the non-disclosure.
Where journalists respond to a request or order to disclose
information identifying a source, the competent authorities
should consider applying measures to limit the extent of a
disclosure.
The 18 January 1994 European Parliament Resolution on
confidentiality for journalists' sources and the right of civil
servants to disclose information urges that the institutions of
authority lay down the conditions for the respect of
journalists' professional secrecy by the authorities together
with the justifiable and at all events limited exceptions
thereto.
11. It has been mentioned that Article 8 of the Law inter
alia provides that the journalist has the right to preserve the
secret of the source of information and not to disclose the
source of information.
Article 8 of the Law also provides that the producer and
imparter, the owner of the producer and/or imparter of public
information as well shall have the right to preserve the secret
of the source of information and not to disclose the source of
information. The formula "the producer and imparter, the owner
of the producer and/or imparter of public information" is to be
interpreted as meaning that that the producer and imparter, the
owner of the producer and/or imparter of public information
have the right to preserve the secret of the source of
information and not to disclose the source of information only
inasmuch as they, because of their professional ties with the
journalist, take part in seeking, obtaining and imparting
information.
12. The provision of Article 8 of the Law means that the
producer and imparter, the owner of the producer and/or
imparter of public information and the journalist shall have
the right to preserve the secret of the source of information
and not to disclose the source of information in all cases.
Thus, even in such cases when in a democratic state it is
necessary to disclose the source of information due to vitally
important or other interests of society, also, in attempt to
ensure that the constitutional rights and freedoms of persons
be protected, and that justice be administered, the persons
indicated in Article 8 of the Law have the right to refuse to
disclose the source of information.
It has been held in this Ruling of the Constitutional
Court that the legislator, by establishing, by law, the right
of the journalist to preserve the secret of the source of
information and not to disclose the source of information, must
pay heed to the imperative of an open, just, and harmonious
civil society and law-governed state which is entrenched in the
Constitution, and may not establish such legal regulation
whereby preconditions would be created to violate the values
entrenched in the Constitution.
It has been mentioned that the freedom to seek, obtain and
impart information is not absolute, and that, under Paragraph 4
of Article 25 of the Constitution, freedom to express
convictions or impart information shall be incompatible with
criminal actions-the instigation of national, racial,
religious, or social hatred, violence, or discrimination, the
dissemination of slander, or misinformation, while under
Paragraph 3 thereof, freedom to express convictions, as well as
to obtain and disseminate information, may not be restricted in
any way other than as established by law, when it is necessary
for the safeguard of the health, honour and dignity, private
life, or morals of a person, or for the protection of
constitutional order. The balance between the freedom of
information and other constitutional values is entrenched in
the Constitution.
It has been held in this Ruling already that, upon the
consolidation of the right of the journalist, by law, to
preserve the secret of the source of information and not to
disclose the source of information, and in case the question
arises whether the source of information should be disclosed,
one must assess in every particular case whether by the
non-disclosure of the source of information the values
safeguarded by the Constitution would not be violated.
After it had been established in Article 8 of the Law that
the producer and imparter, the owner of the producer and/or
imparter of public information, and the journalist shall have
the right to preserve the secret of the source of information
and not to disclose the source of information in all cases, a
legal situation was created when in the event that a question
arises whether it is necessary to disclose the source of
information due to vitally important or other interests of
society which are of utmost importance, also, in attempt to
ensure that the constitutional rights and freedoms of persons
be protected, and that justice be administered, the court is
deprived of a legal opportunity to assess in every particular
case whether the balance between the freedom of information
entrenched in the Constitution and other constitutional values
is not violated. Thus, the provision Article 8 of the Law that
the producer and imparter, the owner of the producer and/or
imparter of public information, and the journalist shall have
the right to preserve the secret of the source of information
and not to disclose the source of information to the extent
that the specified entities have the right to preserve the
secret of the source of information and not to disclose the
source of information even in the cases when in a democratic
state, upon a decision of the court, it is necessary to
disclose the source of information due to vitally important or
other interests of society which are of utmost importance,
also, in attempt to ensure that the constitutional rights and
freedoms of persons be protected, and that justice be
administered is incompatible with Paragraphs 3 and 4 of Article
25 of the Constitution and the imperative of an open, just and
harmonious civil society and the constitutional principle of a
law-governed state.
13. Taking account of the arguments set forth, one is to
conclude that Article 8 of the Law on the Provision of
Information to the Public to the extent that it is established
that the producer and imparter, the owner of the producer
and/or imparter of public information, and the journalist have
the right to preserve the secret of the source of information
and not to disclose the source of information even in the cases
when in a democratic state, upon a decision of the court, it is
necessary to disclose the source of information due to vitally
important or other interests of society which are of utmost
importance, also, in attempt to ensure that the constitutional
rights and freedoms of persons be protected, and that justice
be administered conflicts with Paragraphs 3 and 4 of Article 25
of the Constitution and the constitutional principle of a
law-governed state.
14. In Article 29 of the Constitution the principle of
equality of all persons before the law, the court, and other
state institutions and officers is enshrined. The
constitutional principle must be observed when passing and
applying laws, as well as administering justice (Constitutional
Court ruling of 24 January 1996). This principle is a
constitutional guarantee for the inborn human right to be
treated on the equal basis with the others (Constitutional
Court ruling of 27 October 1998). In its ruling of 13 November
1997, the Constitutional Court held that, in law, the principle
of equality before the law means an "equal measure" when one
has to apply the same norm for different persons. This
principle obligates to apply uniform legal assessment to
homogeneous facts and prohibits to arbitrarily assess
essentially homogeneous facts in a different manner
(Constitutional Court ruling of 24 January 1996).
The constitutional principle of equality of people of its
own accord does not deny the fact that law may establish
different legal regulation concerning certain categories of
people who are in different situations (Constitutional Court
ruling of 28 February 1996).
The problem of equality of persons in the laws cannot be
adequately decided without assessment of the fact in each case
whether peculiarities of legal regulation are reasonably
established in respect to these persons (Constitutional Court
ruling of 13 November 1997).
15. The right of the journalist to preserve the secret of
the source of information and not to disclose the source of
information is one of the conditions of the freedom of the
media. Under Article 8 of the Law, the producer and imparter,
the owner of the producer and/or imparter of public information
and the journalist have the right to preserve the secret of the
source of information and not to disclose the source of
information in all cases. Thus, even in such cases when in a
democratic state when, upon a decision of the court, it is
necessary to disclose the source of information due to vitally
important or other interests of society which are of utmost
importance, also, in attempt to ensure that the constitutional
rights and freedoms of persons be protected, and that justice
be administered, the aforementioned persons have the right to
preserve the secret of the source of information and not to
disclose the source of information.
Under the Constitution, in the Republic of Lithuania, the
courts shall have the exclusive right to administer justice
(Paragraph 1 of Article 109 of the Constitution). It is
established in the Constitution that every person may defend
his or her rights on the basis of the Constitution (Paragraph 2
of Article 6 of the Constitution), and that any person whose
constitutional rights or freedoms are violated shall have the
right to appeal to court (Paragraph 1 of Article 30 of the
Constitution). The unconditional consolidation, in the Law, of
the right of the journalist to preserve the secret of the
source of information and not to disclose the source of
information in all cases means that even when it is necessary
to disclose the source of information because of the more
important interest protected by the Constitution, the court
does not have an opportunity to investigate all the
circumstances of the case objectively and impartially, thus it
cannot protect the constitutional rights and freedoms of the
person and administer justice.
It has been mentioned that in Article 29 of the
Constitution inter alia the principle of equality of all
persons before the court is enshrined. It has been held in this
Ruling of the Constitutional Court that Article 8 of the Law to
the extent that it is established that the producer and
imparter, the owner of the producer and/or imparter of public
information, and the journalist have the right to preserve the
secret of the source of information and not to disclose the
source of information even in the cases when in a democratic
state, upon a decision of the court, it is necessary to
disclose the source of information due to vitally important or
other interests of society which are of utmost importance,
also, in attempt to ensure that the constitutional rights and
freedoms of persons be protected, and that justice be
administered conflicts with Paragraphs 3 and 4 of Article 25 of
the Constitution and the constitutional principle of a
law-governed state. Alongside, after it has been established
that the producer and imparter, the owner of the producer
and/or imparter of public information, and the journalist have
the right to preserve the secret of the source of information
and not to disclose the source of information even to the
court, although it is necessary to disclose the source of
information so that justice be administered, one disregards the
constitutional principle of equality of persons before the
court.
16. Taking account of the arguments set forth, one is to
conclude that Article 8 of the Law on the Provision of
Information to the Public to the extent that it is established
that the producer and imparter, the owner of the producer
and/or imparter of public information, and the journalist have
the right to preserve the secret of the source of information
and not to disclose the source of information even to the
court, although it is necessary to disclose the source of
information so that justice be administered, conflicts with
Article 29 of the Constitution.
II
On the compliance of Paragraph 3 of Article 14 of the Law
on the Provision of Information to the Public with Article 22
of the Constitution.
1. Paragraph 3 of Article 14 of the Law on the Provision
of Information to the Public provides: "Information about the
private life may be published without the consent of the human
being in cases when the publishing of the information does not
inflict damage on the person or when the information helps to
reveal violations of laws or crimes, as well as when the
information is submitted during the consideration of a case in
open court proceedings. Besides, the information about the
private life of the public person (state politicians, public
servants, heads of political parties and public organisations
as well as other persons participating in public and political
activities) may be published without the consent of the latter
provided this information discloses the circumstances of the
private life or personal characteristics of the public person,
which are of public importance."
The petitioner requests to investigate whether the
provision of Paragraph 3 of Article 14 of the Law that
information about the private life of the person may be
published in cases when the publishing of the information does
not inflict damage on the person, and also that the information
about the private life of the public person (state politicians,
public servants, heads of political parties and public
organisations as well as other persons participating in public
and political activities) may be published without the consent
of the latter provided this information discloses the
circumstances of the private life or personal characteristics
of the public person, which are of public importance, is in
compliance with Article 22 of the Constitution.
2. Article 22 of the Constitution provides:
"The private life of an individual shall be inviolable.
Personal correspondence, telephone conversations,
telegraph messages, and other intercommunications shall be
inviolable.
Information concerning the private life of an individual
may be collected only upon a justified court decision and in
accordance with the law.
The law and the court shall protect individuals from
arbitrary or unlawful interference in their private or family
life, and from encroachment upon their honour and dignity."
3. Article 22 of the Constitution consolidates the
inviolability of the private life of an individual. The right
of an individual to privacy encompasses the inviolability of
private, family and house life, of honour and reputation,
physical and psychological inviolability of persons, secrecy of
personal facts and prohibition to publicise obtained or
acquired confidential information etc.
The right to the inviolability of private life is not
absolute. Under the Constitution, it is permitted to restrict
the constitutional rights and freedoms of the individual in
case the following conditions are observed: this is done by
law; the restrictions are necessary in a democratic society in
attempt to protect the rights and freedoms of other persons and
the values entrenched in the Constitution as well as the
constitutionally important objectives; the restrictions do not
deny the nature and essence of the rights and freedoms; the
constitutional principle of proportionality is followed
(Constitutional Court ruling of 19 September 2002).
The provisions of Article 22 of the Constitution,
consolidating inviolability of the private life, are related
with other provisions of the Constitution and are to be
construed, while taking account of them and, in the context of
the case at issue, of the provisions of Article 25 of the
Constitution, consolidating the right to information. There is
a balance between the values entrenched in Articles 22 and 25
of the Constitution. In the course of the regulation of the
relations of informing the public, a duty arises for the
legislator to pay heed to the balance of the constitutional
values.
4. Paragraph 3 of Article 14 of the Law inter alia
provides that information about the private life may be
published without the consent of the human being in cases when
the publishing of the information does not inflict damage on
the person.
This provision of Paragraph 3 of Article 14 of the Law
reflects one of the obligations and principles of the
activities of the media-to publish objective and true
information. Thus, under the Law, in every case when
information about the private life of a person is published
without the consent of the latter, one must weigh all the
circumstances and assess whether the publication of the
information about the private life of the person will not
inflict damage on him. It needs to be noted that the said
provision of Paragraph 3 of Article 14 of the Law may not be
interpreted as permitting to publish any information about the
private life of the person without the consent of the latter.
There are such areas of private life (for example, intimate
life) the information about which may neither be collected nor
published without the consent of the person, unless (and only
inasmuch as) this helps to reveal a crime committed by the
person.
Article 28 of the Constitution provides that, while
exercising their rights and freedoms, persons must observe the
Constitution and the laws of the Republic of Lithuania, and
must not impair the rights and freedoms of other people. Under
Paragraph 2 of Article 30 of the Constitution, the law shall
establish the procedure for compensating material and moral
damage inflicted on a person. The legislator has a duty to
establish by law that in the case that information about the
private life of an individual is imparted without the consent
of the latter and due to this damage is inflicted on the said
individual (save the cases when dissemination of such
information helps to reveal crimes or violations of law, or
when this reveals circumstances of the private life of the said
person, which are of public importance), then the inflicted
damage must be compensated. The compensation of damage includes
both material and moral damage. The compensation must be
adequate for the material and/or moral damage inflicted. The
petitioner does not dispute the legal regulation of damage
compensation established by law.
5. Taking account of the arguments set forth and only
solely interpreting the provision of Paragraph 3 of Article 14
of the Law on the Provision of Information to the Public in the
manner that information about the private life of a person may
be published without the consent of the latter in the cases
when the publication of this information does not inflict
damage on the person, one is to conclude that this provision is
in compliance with Article 22 of the Constitution.
6. Paragraph 3 of Article 14 of the Law inter alia
provides that the information about the private life of the
public person (state politicians, public servants, heads of
political parties and public organisations as well as other
persons participating in public and political activities) may
be published without the consent of the latter provided this
information discloses the circumstances of the private life or
personal characteristics of the public person, which are of
public importance.
7. While assessing whether the indicated provision of
Paragraph 3 of Article 14 of the Law is in compliance with
Article 22 of the Constitution, it needs to be noted that in
the Constitution the imperative of an open, just and harmonious
civil society and law-governed state is entrenched, that
Paragraph 3 of Article 5 of the Constitution provides that
institutions of power shall serve the people, that Paragraph 2
of Article 33 of the Constitution provides that each citizen
shall be guaranteed the right to criticise the work of state
institutions and their officers, and to appeal against their
decisions, and that it shall be prohibited to persecute people
for criticism. It has been held in this Ruling of the
Constitutional Court that the Constitution guarantees and
safeguards the interest of the public to be informed, and also
that the freedom of the media stems from the Constitution.
8. While deciding whether the disputed provision of
Paragraph 3 of Article 14 of the Law that the information about
the private life of the public person (state politicians,
public servants, heads of political parties and public
organisations as well as other persons participating in public
and political activities) may be published without the consent
of the latter provided this information discloses the
circumstances of the private life or personal characteristics
of the public person, which are of public importance is in
compliance with Article 22 of the Constitution, it needs to be
noted that the personal characteristics, behaviour and certain
circumstances of the private life of the persons participating
in social and political activities may be of importance to
public affairs. The interest of the public to know more about
these persons than about others is constitutionally grounded.
The said interest would not be ensured if in every particular
case, when publishing the information of public importance
about the private life of a person participating in social and
political activities, the consent of the said person were
necessary. Thus, the media may inform the public about the
private life of such a person without the consent of the latter
inasmuch as the personal characteristics, behaviour and certain
circumstances of the private life of the said person may be of
importance to public affairs and due to this the published
information is of public importance. The person participating
in social and political activities cannot not anticipate a
greater attention of the public and the media towards him. Such
persons, as a rule, are called public persons.
The persons who, due to the office that they hold or due
to the character of the work that they perform, participate in
the public life are to be attributed to public persons in the
first place. They are politicians, state and municipal
officials, heads of public organisations. Other persons may
also be considered public persons, if their activity is of
importance to public affairs.
The Constitution does not employ the notion of the public
person. When establishing the institute of the public person,
the legislator must define the criteria under which certain
persons may be attributed to public persons. It needs to be
noted that the post of the person or his participation in
social activity in themselves are not to be considered
necessary or sufficient criteria under which the person may be
attributed to public persons. The legislator, establishing, by
law, the criteria under which the person may be attributed to
public persons, must pay heed to the balance between the right
of an individual to privacy enshrined in Article 22 of the
Constitution and the interest of the public to be informed
about all the factors capable of exerting influence on public
affairs, which is guaranteed and safeguarded by the
Constitution.
It needs to be noted that certain facts of the private
life of public persons, their personal characteristics in their
public activity, as a rule, reveal themselves of their own
accord. In its ruling of 8 May 2000, the Constitutional Court
held that when the person caries out actions of public
character and comprehends it or must comprehend it or is
capable of understanding it, whether at home or other private
premises, then such actions of public character will not enjoy
protection under Article 22 of the Constitution and the person
may not expect privacy.
9. Taking account of the arguments set forth, one is to
draw a conclusion that the provision of Paragraph 3 of Article
14 of the Law that the information about the private life of
the public person (state politicians, public servants, heads of
political parties and public organisations as well as other
persons participating in public and political activities) may
be published without the consent of the latter provided this
information discloses the circumstances of the private life or
personal characteristics of the public person, which are of
public importance, is in compliance with Article 22 of the
Constitution.
10. Summing up, one is to draw a conclusion that Paragraph
3 of Article 14 of the Law is in compliance with Article 22 of
the Constitution.
Conforming to Articles 102 and 105 of the Constitution of
the Republic of Lithuania and Articles 1, 53, 54, 55 and 56 of
the Republic of Lithuania Law on the Constitutional Court, the
Constitutional Court of the Republic of Lithuania has passed
the following
ruling:
1. To recognise that Article 8 of the Republic of
Lithuania Law on the Provision of Information to the Public to
the extent that it is established that the producer and
imparter, the owner of the producer and/or imparter of public
information, and the journalist have the right to preserve the
secret of the source of information and not to disclose the
source of information even in the cases when in a democratic
state, upon a decision of the court, it is necessary to
disclose the source of information due to vitally important or
other interests of society which are of utmost importance,
also, in attempt to ensure that the constitutional rights and
freedoms of persons be protected, and that justice be
administered conflicts with Paragraphs 3 and 4 of Article 25 of
the Constitution of the Republic of Lithuania and the
constitutional principle of a law-governed state.
2. To recognise that Article 8 of the Republic of
Lithuania Law on the Provision of Information to the Public to
the extent that it is established that the producer and
imparter, the owner of the producer and/or imparter of public
information, and the journalist have the right to preserve the
secret of the source of information and not to disclose the
source of information even to the court, although it is
necessary to disclose the source of information so that justice
be administered, conflicts with Article 29 of the Constitution
of the Republic of Lithuania.
3. To recognise that Paragraph 3 of Article 14 of the
Republic of Lithuania Law on the Provision of Information to
the Public is in compliance with the Constitution of the
Republic of Lithuania.
This Constitutional Court ruling is final and not subject
to appeal.
The ruling is promulgated on behalf of the Republic of
Lithuania.
Justices of the Constitutional Court: Armanas Abramavičius
Egidijus Jarašiūnas
Egidijus Kūris
Kęstutis Lapinskas
Zenonas Namavičius
Augustinas Normantas
Jonas Prapiestis
Vytautas Sinkevičius
Stasys Stačiokas