The Luxembourg government has defended the strength of the legal framework governing the protection of journalistic sources, whilst acknowledging that the safeguards afforded to lawyers remain more robust. This is the conclusion of a parliamentary response given on Wednesday 3 June by Minister of Justice 
In his question, Goergen raised concerns, in particular, about the judiciary’s ability to access or seize communications with journalists uncovered during an investigation into a third party. The MP was referring to recent statements by the president of the Luxembourg Association of Professional Journalists (ALJP), who believes that the protection of journalists in Luxembourg still has room for improvement.
The government’s response is based on the Act of 8 June 2004 on freedom of expression in the media. According to Margue, this legislation provides a “high level of protection” for the confidentiality of sources. Professional journalists may refuse to reveal the identity of their sources or the content of the information they have gathered. This protection also extends to publishers and anyone likely to be in possession of information that could identify a source.
Protection that is not absolute
The government also pointed out that the police, judicial and administrative authorities must refrain from taking any action designed to circumvent this right. Furthermore, where information enabling the identification of a source is discovered incidentally during an investigation, without this being the initial objective of the investigation, it may not be used as evidence. In this regard, the minister cited the judgment in Roemen and Schmit v. Luxembourg delivered by the European Court of Human Rights.
However, this protection is not absolute. The law provides for exceptions where the prevention or prosecution of crimes against persons, drug trafficking, money laundering, terrorism or breaches of national security are at stake. In such situations, journalists and other persons covered by source confidentiality can no longer invoke this protection, and searches or seizures may be ordered.
It is when comparing the situation to that of lawyers that the government’s response becomes most revealing. Whilst the confidentiality of sources is described as a “fundamental pillar of press freedom”, Margue pointed out that communications between a lawyer and their client are subject to an even more protective regime. Solicitors’ professional privilege is considered inviolable, and any search or seizure carried out at a solicitor’s office must take place in the presence of the president of the bar or their representative, failing which the proceedings will be deemed null and void.
“The rules governing lawyers are therefore stricter,” the minister explicitly admitted. “The procedure is more tightly regulated and requires an external supervisory body.” This acknowledgement is likely to fuel demands from the journalistic profession, at a time when the debate on the effective protection of sources and press freedom remains particularly sensitive against a backdrop of increasing digital investigations and mass data collection.
