Prosecutor’s office demands access to information covered by reporter’s privilege. HFHR responds

On Thursday 16 November 2017, Polsat News reporter Ewa Żarska was once again summoned as a witness to the Regional Prosecutor’s Office in Łódź. The Prosecutor’s Office repeated its request to disclose the identity of Ms Żarska’s informant, but the reporter once again refused. Before her interview, the Helsinki Foundation for Human Rights has called on the Prosecutor’s Office to refrain from acting in a way that is likely to fall short of the standards of the reporter privilege’s protection.Journalistic investigation
In January 2017, the Polsat News channel ran a resounding investigative report by Ewa Żarska, entitled “Mała prosiła, żeby jej nie zabijać” (“The kiddo begged not to kill her”). The reporter managed to locate Krzysztof P., a man wanted for distribution of child pornography. The journalist also obtained access to his correspondence with a police informant, in which he gave details of the abductions, rapes and murders of children that he allegedly had committed. Thanks to this journalistic investigation, the prosecution service resumed once suspended proceedings against P., in which he was charged with distribution of child pornography, and also launched a new investigation in a case of a murdered girl. In effect, Krzysztof P. was arrested in Russia in July 2017, he is now placed in home detention pending extradition.

Journalistic sources protected despite penalties
Shortly after the report was aired, a prosecutor’s office requested the journalist to disclose the identity of the person who fed her with information, including the correspondence with P. during her investigation. Ewa Żarska refused, invoking reporter’s privilege. The reporter also argued that her source had been already known to the police as a police informant. The Regional Court in Łódź admitted the prosecution’s motion for releasing Ms Żarska from her professional confidentiality obligation. The decision was upheld by a court of appeal. Ewa Żarska opposed the ruling and kept refusing to disclose her informant. A prosecutor sanctioned Ms Żarska for her refusal to testify by imposing procedural penalties in a total amount of six thousand zlotys. The penalties were later upheld by a court.

Waiver of privilege – only exceptional
“In our letter to a prosecutor’s office, we emphasised that given the reporter’s privilege is a crucial precondition of the free press, it should be waived only in exceptional circumstances, when the waiver is justified by an important public interest which cannot be otherwise protected, and in particular, when it is impossible to establish a fact by presenting other evidence”, HFHR’s lawyer Konrad Siemaszko says. “The court released Ewa Żarska from her professional confidentiality obligation right at the start of the proceedings. That is why we have asked the prosecutor’s office to consider whether this release remains valid for subsequent attempts to obtain testimony from Ms Żarska, taking into account how the investigation is progressing”, the lawyer adds.