Watchdog Watching Too Closely
Journalists Reporting on Military Intelligence Were Held Guilty of a Crime in Finland
In December 2017, readers of the largest and maybe also the most esteemed Finnish newspaper, Helsingin Sanomat, were surprised to find an article which, among others, showed excerpts of classified, red-labelled documents. The long article described the operations of a special center, part of the military intelligence, called Viestikoekeskus, which was specialized in military signal intelligence. Very little was publicly known about the workings of that center situated in a faraway resort.
More than five years later, on January 27th, 2023, the Helsinki District Court found both of the journalists guilty of criminal disclosure charges. It took, however, the special circumstances of the case into account. The key journalist was sentenced to a 50 day-fine units only, even though the Penal Code provided an imprisonment sentence of not less than four months. The assistant journalist went unpunished. The superior person was considered not guilty. Both parties have appealed so that the decision is not final yet.
A high-profile case in a changing security environment
The real issue was – and still is – whether the reporting of the classified material can be deemed as a legitimate use of the freedom of speech by an investigative journalist, or whether this was a criminal violation of national security interests. Put simply, the court’s decision is that the watch-dog media may report abuses of power. However, an interest to attract readers only is not enough to justify the disclosure.
In 2017, there was a great interest to report on activities of the civil and military intelligence due to new laws that were being drafted and debated. At the time of publication, the Finnish Parliament was discussing the proposal for a new Act on Military Intelligence which would regulate these activities and create an accountability mechanism. In fact, the Act entered into force in 2019. The journalists defended their decision to make use of classified material in reporting along these events.
After having published the first two articles, one of them online, Helsingin Sanomat decided not to continue, even though a set of five more articles were in the pipeline. It is not quite clear how the classified material ended up in the hands of the investigative journalist who had a reputation of digging deep. It seems likely that the material as such had been handed over to the journalist or someone close to him, perhaps accidentally. There were some speculations, but nothing has been confirmed. The military knew that the articles were about to be published, and it had warned about its consequences.
It could be seen from the very beginning that this would be a high profile case. Immediately, the military reported the case to the police which started to investigate. Even the President of Finland, who is the chief command of the Finnish Army, voiced his criticism concerning the disclosure. The suspected offence was the disclosure of a national secret according to the provision of Chapter 12 Sect. 7 of the Finnish Criminal Code. Chapter 12 comprises the provisions on Treasonable Offences, a Chapter seldom practiced before a court.
Its wording is clear: the disclosure and publishing of classified information is penalized without any further clauses and discretion. The legislator’s idea was to simply to see if the case concerned a national secret, and whether its disclosure could be justified. In the past, on most occasions no justifications could be presented. Instead, the military and other relevant official have some discretion when classifying who can lawfully possess such information.
Balancing national security interests and free speech
In the limited case law of this type in Finland, the disclosure had been usually committed by a person in office, for example when the Finnish Supreme Court decided on a case in which a civil servant of the Finnish foreign ministry had leaked some classified EU-documents to a foreign country national. The civil servant was charged on the account of espionage, but the Supreme Court sentenced the accused only for the offense of disclosure of a national secret.
As the offense definition itself was an old and traditional one, seldomly applied and without much scholarly attention, the defense in this case brought forward justifications based on journalistic interests ultimately backed up by freedom of speech and the freedom of press. Without doubt, informing the public about an activity of general interest, which also might risk the protection of rights of the individuals and which at that time was closely linked to the debate around the proposed Military Intelligence Act, means exercising fundamental political freedoms. Freedom of speech finds its normative grounding both in the Finnish Constitution and in the European Convention of Human rights as well as other international treaty law.
In our case, the Helsinki District Court deserves merit for its detailed scrutiny of the relevance of freedom of speech in this rather unusual setting. In working through its argument, the court used rich source material. It analyzed not only the case law of the European Court of Human Rights, but also referred to scholarly articles on the issues. It especially noted that reporting about military intelligence by the press would have been allowed, if the press had been exercising its watch-dog function and disclosing abuses in the operations of the military. However, it found that this was not the case.
It was regarded crucial whether the disclosure of the facts in the article was serving the general interest of the public to know. The reasoning ended up stating that the motivation of the disclosure was not solely such interest, but the style of presenting. Especially the use of red-labelled photos showed that the article also simply sought to draw attention. The court took it that interpretations concerning the limits of the right to free speech have to be constructed contextually, by carefully interpreting the circumstances of the case. Here, the article was regarded to serve a diffuse interest, and as it did not contain any detail of reporting an abuse or similar, the freedom could not overweigh the interests of secrecy. We can see a kind of optimization here, along the lines of the doctrine introduced famously by Robert Alexy.
The defense put forward the argument that the red-labelled documents were rather old and only contained information that could have been collected from public sources. Even though the key journalist refused to disclose his sources, he made the effort to prove that this indeed was the case by referring to a pile of public sources. He also indicated that the fancy pictures of the documents with red labels were there mainly for reasons of decoration, arguing that they were not relevant for the contents of the article.
This the court did not buy. The article had contained information about the functions, activities, organization, capabilities and procurement of the military intelligence unit. Indeed, some of those details no longer merited secrecy after 10 years, when they were published, but due to the long-term development and nature of the activities of military intelligence, the secrecy still covered part of the disclosed facts. On this ground, it was argued that the article described a world not fully outdated. The court also did not accept the argument that the article was linked to the law proposal on the same topic, since it could not establish such link.
The court avoided running fully over the rights and interests of the press, yet it did not give those rights full protection under the circumstances. The actions were regarded as intentional, since the journalists must have known about the strict case law in this field, and they had even been warned beforehand. As a mitigating factor, the court referred to the case law of the ECtHR stating that journalists should never face an imprisonment sentence when doing their work. Additionally, the case’s excessive public media attention and the long duration of the proceedings were factored in. Charges on the account of criminal attempt were dropped as these to-be-articles only existed as drafts on the desks of the journalists.
The judgement was issued by a panel of three professional judges, and it was unanimous. After appeals followed from both sides, the Appellate Court of Helsinki will see the case next.
The court’s recent judgment, however, falls into a period of drastically changed security contexts. Since the beginning of the Russian aggression in Ukraine, the matters concerning military intelligence and national security have gained a renewed significance in Europe, particularly in Finland. Of course, this should not color the way we see the domain of freedom of speech. Nonetheless, the judgement might have at least a slight chilling effect on journalistic work in this sensitive field. Following the court’s reasoning, a watchdog media may of course report abuses of power – but an interest to only attract readers, however, is not enough to justify disclosures. Between these two principles, there is a grey zone in which journalists should take a moment to reflect before going out to the public.
It will be interesting to follow the appeal procedure and see how the reasoning develops. For an international reader, it may be relevant to note that the chapter on fundamental rights and freedoms of the Finnish Constitution was reformed in 1995, as Finland had joined the Council of Europe only a few years earlier. The case law of the European Court of Human Rights quickly gained relevance in the criminal law proceedings that involved freedom of speech aspects. However, the provisions concerning the disclosure of classified information due to national security interests did not figure in these debates. In my personal opinion, the decision of the first instance court already shows a careful and extensive weighing of the relevant principles. The decision of the appeals court can most likely be expected next year. It is possible that the case could end up on the tables of the judges in Strasbourg.
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