LRG Final Report

INTERNATIONAL LEGAL
RESEARCH GROUP
FREEDOM OF EXPRESSION AND
PROTECTION OF JOURNALISTIC SOURCES
FINAL REPORT

Legal Research Group on Freedom of Expression and
Protection of Journalistic Sources
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INTERNATIONAL LEGAL RESEARCH GROUP ON FREEDOM OF
EXPRESSION – PROTECTION OF JOURNALISTIC SOURCES
Protection of journalistic sources as one of the basic conditions for freedom of expression without which sources may
be deterred from assisting the media in informing the public on matters of public interest
The European Law Students’ Association
International Coordinator
Antonia Markoviti
International Academic Coordinator
Bruno Filipe Monteiro
International Research Assistants
Håkon Sverdstad Bjørvik & Mariagiulia Cecchini
International Human Resources Coordinator
Jakub Čája
International Linguistics Editor
Mark O’Reilly
International Technical Editor
Lala Darchinova
International Academic Supervisor
Ms. Silvia Grundmann
Head of the Media Division in the Information Society Department of the Directorate General Human Rights
and Rule of Law, Council of Europe
July, 2016

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FOREWORD
Dear Reader,
The Final Report of the International Legal Research Group on Freedom of Expression -
Protection of Journalistic Sources is the outcome of a year of effort and devotion.
Approximately 300 people are the ‘owners’ of this work. It was indeed a highly demanding
procedure for all the participants, since our wish to reach a satisfactory level of academic quality,
made the whole process challenging – out of the initial 35 registered countries, 28 reach the
academic requirements that were set this year. However, real effort is always rewarded and we
believe that this international publication will constitute a strong asset in the CV of the
participants, but - most importantly - we really hope that all this acquired knowledge has
essentially helped the participants to understand thoroughly one of the biggest focuses of the
Council of Europe and encouraged them to pay more attention on this topic and act concretely
in the future to address – at least legally – these challenges.
Of course, the achievements of the International Legal Research Group would not have been
reached without the valuable support and help from many individuals.
First and foremost, as the International Coordination Team, we would like to congratulate the
National Research Groups for their extraordinary work. The result is based on the will and effort
of the 28 participating countries, involving approximately 300 students and academics
participating as Researchers, Coordinators, Linguistics Editors and Academic Supervisors. We
would like to thank all of you, because this enormous achievement is now available to act as a
valuable source of information for all of our fellow students abroad and of course for anyone
interested in the topic.

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Indeed, the professional and academic contribution is very important for such kind of student
activitities. Therefore, we would like to wholeheartedly thank Ms. Barbara Orkwiszewska and the
Directorate of Communications of the Council of Europe. We are very grateful for your
assistance. Furthermore, we would like to acknowledge the academic support provided by the
Media Division in the Information Society Department of the Directorate General Human
Rights and Rule of Law, and especially the Head and International Academic Supervisor, Ms.
Silvia Grundmann. Specifically, we would like to express our huge gratitude to Ms. Christina
Lamprou from the aforementioned department of the Council of Europe, without whom the
project would not have been realised. Thank you very much for everything. Last but not least,
we are also grateful to Dagne Sabockyte, Vice President for Marketing of ELSA International
2015/16 who contributed to the project in many ways during the year and especially technically.
We wish you a pleasant reading!
Thankfully yours,
Antonia, Bruno, Håkon, Mariagiulia, Jakub, Lala and Mark
International Coordination Team of the International Legal Research Group on Freedom of
Expression - Protection of Journalistic Sources

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1. WHAT IS ELSA?
ELSA is a non-political, non-governmental, non-profit making, independent organisation which
is run by and for students. ELSA has 43 Member and Observer countries with more than 300
Local Groups and 42,000 students. It was founded in 1981 by 5 law students from Poland,
Austria, West Germany and Hungary. Since then, ELSA has aimed to unite students from all
around Europe, provide a channel for the exchange of ideas and opportunities for law students
and young lawyers to become internationally minded and professionally skilled. Our focus is to
encourage individuals to act for the good of society in order to realise our vision: “A just world in
which there is respect for human dignity and cultural diversity”. You can find more information on
WWW.ELSA.ORG.
2. LEGAL RESEARCH GROUPS IN ELSA
A Legal Research Group (LRG) is one of the flagship projects of ELSA. It is a group of law
students and young lawyers carrying out research on a specified topic of law with the aim to
make their conclusions publicly accessible. Legal research was one of the main aims of ELSA
during our early years. When ELSA was created as a platform for European cooperation
between law students in the 1980s, sharing experience and knowledge was the main purpose of
our organisation. In the 1990s, our predecessors made huge strides and built a strong association
with a special focus on international exchange. In the 2000s, young students from Western to
Eastern Europe were facing immense changes in their legal systems. Our members were part of
such giant legal developments such as the EU expansion and the implementation of EU Law. To
illustrate, the outcome of the ELSA PINIL (Project on International Criminal Court National
Implementation Legislation) has been the largest international criminal law research in Europe.
In fact, the final country reports have been used as a basis for establishing new legislation in
many European countries.
The results of our more recent LRGs are available electronically. ELSA FOR CHILDREN (2012)
was published on COUNCIL OF EUROPE'S WEB PAGES and resulted in a FOLLOW UP LRG (2014)

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together with, among others, Missing Children Europe. In 2013, ELSA was involved in Council
of Europe's ‘No Hate Speech Movement’. THE FINAL REPORT resulted in a concluding
conference in Oslo that same year and has received a lot of interest from academics and activists
in the field of discrimination and freedom of speech. The RESULTS OF THE LRG CONFERENCE, a
guideline, have even been translated into Japanese and were presented in the Council of Europe
and UNESCO! Last year, we organized Legal Research Group on Social Rights in cooperation
with Department of European Social Charter in Council of Europe. 28 National Groups
contributed to Final Report and the results are going were presented on a concluding conference
in Strasbourg, where the Concluding Report of the whole research was finalised. In the same
year with the current LRG a new big cooperation began with the International Labour
Organisation (ILO) and a new LRG with the purpose of expanding the ILO LEGOSH
Database. The concrete results will be published by ILO and will be available soon.
3. WHAT IS THE LEGAL RESEARCH GROUP ON FREEDOM OF
EXPRESSION – PROTECTION OF JOURNALISTIC SOURCES
The topic of new LRG is Protection of Journalistic Sources.There have been a large number of
cases in which public authorities in Europe have forced, or attempted to force, journalists to
disclose their sources. The European Court of Human Rights has reiterated that Article 10 of the
European Convention on Human Rights safeguards not only the substance and contents of
information and ideas, but also the means of transmitting it. The press has been accorded the
broadest scope of protection in the Court’s case law, including with regard to confidentiality of
journalistic sources.
“Protection of journalistic sources is one of the basic conditions for press freedom. … Without
such protection, sources may be deterred from assisting the press in informing the public on
matters of public interest. As a result the vital public-watchdog role of the press may be
undermined, and the ability of the press to provide accurate and reliable information be

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adversely affected. … [A]n order of source disclosure … cannot be compatible with Article 10 of
the Convention unless it is justified by an overriding requirement in the public interest.”
(Goodwin v. the United Kingdom, judgment of 27 March 1996, § 39).
The Council of Europe has found that violations are more frequent in member states without
clear legislation. Moreover, in cases of investigative journalism, the protection of sources is of
even greater importance. To shed light on this issue, ELSA has partnered with the Media and
Internet Division of the Directorate General of Human Rights and Rule of Law in the Council
of Europe to understand how journalistic sources are being protected in each Member-States.

Table of Contents
ELSA ALBANIA.........................................................................................................................................8
ELSA AUSTRIA....................................................................................................................................... 55
ELSA AZERBAIJAN.............................................................................................................................109
ELSA BELGIUM....................................................................................................................................171
ELSA BOSNIA AND HERZEGOVINA...........................................................................................232
ELSA BULGARIA .................................................................................................................................287
ELSA CYPRUS ......................................................................................................................................353
ELSA FINLAND....................................................................................................................................401
ELSA GEORGIA ...................................................................................................................................453
ELSA GERMANY.................................................................................................................................499
ELSA GREECE.......................................................................................................................................572
ELSA HUNGARY.................................................................................................................................617
ELSA IRELAND ....................................................................................................................................667
ELSA ITALY ...........................................................................................................................................723
ELSA LATVIA........................................................................................................................................811
ELSA REPUBLIC OF MACEDONIA...............................................................................................885
ELSA MALTA........................................................................................................................................928

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ELSA NETHERLANDS........................................................................................................................984
ELSA NORWAY................................................................................................................................ 1091
ELSA POLAND.................................................................................................................................. 1147
ELSA PORTUGAL............................................................................................................................. 1211
ELSA ROMANIA............................................................................................................................... 1279
ELSA RUSSIA..................................................................................................................................... 1335
ELSA SPAIN....................................................................................................................................... 1415
ELSA SWEDEN ................................................................................................................................. 1486
ELSA TURKEY.................................................................................................................................... 1537
ELSA UKRAINE................................................................................................................................. 1598
ELSA UNITED KINGDOM............................................................................................................. 1668

ELSA Albania
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ELSA ALBANIA
Contributors
National Coordinator and National Academic Coordinator
Sajmira Kopani
National Researchers
Gezim Spahiu
Migena Kore
Paola Ibraj
National Linguistic Editor
Armando Bode
National Academic Supervisor
Prof. Dr. Enkeleda Olldashi

ELSA Albania
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1. Introduction
The freedom of expression constitutes one of the essential foundations of a democratic society.1
In this framework, with a particular importance is the protection of journalistic sources, as one
of the basic conditions for press freedom. Therefore, the legal protection of this right, as it is
affirmed in several international instruments on journalistic freedoms, deserves considerable
attention within the domestic legislation of a country.
It is generally accepted that without such protection, sources may be deterred from assisting the
press in informing the public on matters of public interest. As a result, the vital public-watchdog
role of the press, as it is defined by the European Court of Human Rights, 2
could be
undermined, and the ability of the press to provide accurate and reliable information be
adversely affected.
Journalists in general, whether working for local, national or international media, routinely
depend on non-journalists for the supply of information on issues of public interest. Some
individuals serving as sources come forward with secret or sensitive information, relying upon
the reporter to convey it to a broader audience. In many instances, anonymity is the precondition
upon which the information is conveyed from the source to the journalist. This may be
motivated by fear of repercussions which might adversely affect their physical safety or job
security.3
In these circumstances, it is essential for journalists to be entitled to refuse the disclosure of both
the names of their sources and the nature of the information provided in confidence. The
protection of sources and their confidentiality is essential to journalistic practice, as it is very
difficult for journalists to operate unless they can give a strong and genuine promise of
confidentiality to their sources.4
Despite the clear advantages of the protection of journalistic sources, complicated situations may
arise when the interests of journalists face the public interests and rights, mainly where this
information is relevant to criminal or civil proceedings. In this meaning, differently from other
professions such as the case of a lawyer, the protection of journalistic sources against disclosure
does not constitute an absolute right which cannot be derogated from in light of specific
situations. Therefore, guidelines and provisions in the domestic legislation must provide the
extent to which journalists have this kind of ‘privilege’ to refuse divulging the identity of
confidential sources.
1 Jersild v. Denmark [1994] European Court of Human Rights Series A no. 298, p. 23, para. 31
2 Goodwin v. the United Kingdom [1996] European Court of Human Rights. Series A no. 28957, para 39
3 Article 19 and Interights, ‘Briefing Paper on Protection of Journalists' Sources - Freedom of Expression Litigation Project’ [May
1998], https://www.article19.org/data/files/pdfs/publications/right-to-protect-sources.pdf accessed 05 May 2016
4Centre for Media Pluralism and Media Freedom “Protection of Sources – EU Member States Laws”
http://journalism.cmpf.eui.eu/maps/protection-of-sources/ accessed 05 May 2016

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The journalist is an important actor of media and therefore its position develops with the same
progress as media itself. One can learn a lot about the journalist and the regulation found in the
legislation with regard to the rights attributed to him, only by getting to know closer the situation
and legal regulation of media.5
In this context, this research examines the legal situation regarding the protection of journalistic
sources in the Republic of Albania, as one of the contracting states to the Council of Europe,
with the obligation to guarantee the freedom of expression as stipulated by Article 10 of the
Convention for the Protection of Human Rights and Fundamental Freedoms and other
international legal acts.
2. Does the national legislation provide (explicit or otherwise)
protection of the right of the journalists not to disclose their source of
information? What type of legislation provides this protection? How
exactly is this protection construed in national law?
The national media legislation in Albania has gone through considerable changes during the
transition from a totalitarian regime to a democracy and still, nowadays, the media legal system is
being approximated with national and international requirements and standards.
The legal reform of the media system started with the introduction of the Press Law in 1993,
which was one of the first initiatives of the Government at the time, but this is still not
sufficient. This legislative intervention was modelled after a western example (i.e. the German
state of Westphalia), but failed to adjust to the Albanian context. As a result, the law on Public
and Private Radio and Television, No. 8410, in 1998, was approved with a later Law on
Audiovisual Media adopted in 2013.6
In 2007, Albania signed an Action Plan for media legal
reform with European Union (EU) and the Council of Europe, which together with the
Organization for Security and Co-operation in Europe (OSCE) have participated in the media
legislation reform through legal expertise and consultancy.7
Journalists benefit of the protection from several national sources in Albania. Apart from the
above-mentioned laws, the Constitution also assures protection of speech and the freedom of
expression.
5Artan Fuga, ‘The Four Challenges Faced by Albanian Media’, 15 February 2013,
http://en.ejo.ch/media-economics/challenges-albanian-media accessed 06 May 2016
6 Swedish Helsinki Committee for Human Rights, ‘European regulation and Albanian media legislation: A comparative
analysis of the main standards’
http://www.institutemedia.org/Documents/PDF/European-Albanian%20comparative%20analysis.pdf accessed 01
May 2016
7 ibid.

ELSA Albania
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The Constitution of the Republic of Albania states that the freedom of the press, radio and
television is guaranteed.8
Article 17 of the Constitution provides that the fundamental rights
(including the freedom of expression, freedom of the media and freedom of information) can be
restricted by law, in the public interest or for the protection of the rights of others, while adding
that such restrictions must be “...in proportion to the situation that has dictated it...” and“...in no
case may exceed the limitations provided for in the European Convention of Human Rights.” In
addition, the Law on Radio and Television also states that editorial independence is guaranteed
by law.9
Article 10 of the European Convention on Human Rights (ECHR) does not explicitly mention
the freedom of the press, but the ECHR has developed extensive case-law providing the press a
special status in the enjoyment of the freedoms contained in Article 10.10
A component of this
article is the protection of journalists’ sources, which is considered very important for a
democratic society.
The status of the European Convention on Human Rights in the Albanian legal system is
reinforced by the fact that the Albanian Parliament has ratified the convention and its successive
protocols. As such, these international instruments “constitute part of the internal legal system”
and even prevail, in case of conflict, over ordinary Albanian laws.11
According to article 159 (1) of Criminal Procedural Code, journalists or any other professionals
are not obligated to testify on what they are aware of, if that is part of the professional secret,
except in specific cases for procedural authorities. Additionally, no specific provision concerning
journalists or their right to protect sources is found for information classified as State Secret
Acts.12
The Code of Ethics of the Albanian Media (the material source of law) also offers a special
protection for the sources of information possessed by journalists.13
This Code of Ethics was
drafted in 1996 and revised in 2006 with the initiative of the Albanian Media Institute, the main
NGO in the country dealing with media training and policy, and the two main journalist
associations: the Union of Albanian Journalists and the League of Professional Journalists.
Nevertheless, even 20 years after its creation and the wide support of different organizations and
8 Constitution Law of the Republic of Albania, article 22
9 Law No. 8410 [On Public and Private Radio and Television], article 5
10 Monica Macovei ‘A guide to the implementation of Article 10 of the European Convention on Human Rights’, Council of
Europe, January 2014 http://www.echr.coe.int/LibraryDocs/DG2/HRHAND/DG2-EN-HRHAND-
02(2004).pdf accessed 01 May 2016
11 Constitution, article 122: “1. Any ratified international agreement constitutes part of the internal legal system after
it is published in the Official Journal of the Republic of Albania. It is directly applicable, except when it is not self-
executing and its application requires the adoption of law. 2. An international agreement ratified by law has priority
over the laws of the country that are incompatible with it.”
12 Law n. 8391 (For the National Informative Service) 1999 [Per SherbiminInformativKometar]
13 Term used for the classification of sources of law

ELSA Albania
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institutions, this Code is not a binding act and its implementation relies on the willingness of
journalists themselves.14
Although these national law provisions provide an implicit right for journalists not to disclose
their sources of information, these provisions fail to give an implicit or explicit definition of a
“source” and “information identifying a source”, as set out in the Council of Europe
Recommendation Nr. R(2000)7.15
3. Is there, in domestic law, a provision that prohibits a journalist from
disclosing his/her sources? How exactly is this prohibition construed
in national law? What is the sanction?
Journalist all over the world find it difficult to gain access to places and situations where they can
report on matters of public interest and fulfil their role as reporters of truth and wrongdoings, if
they cannot guarantee confidentiality of their sources. This is a common problem in Albania,
because, if a source is not ensured anonymity, then journalists will not be able to report.
In the national legal system, there are provisions protecting professional secrecy.
As previously stated, Article 159 of the Criminal Procedural Code provides that journalists are
not obligated to disclose the source of information they posses. However, if the information
regarding the sources is essential to evidence the criminal offense, provided that this is the only
way, the court can order the journalists to disclose their sources.
Additionally, according to the “Code of Ethics of Albanian Media”, journalists should not
divulge the name of a person who has provided information on a confidential, unless the person
has explicitly consented.16
The right of anonymity can be infringed in special cases where:
a) There are doubts that the source has intentionally distorted the truth;
b) There are references that the source is the only way to avoid serious and unavoidable
damages;
c) The information is related with the planning of a criminal act.17
14Ilda Londo ‘Self-regulation and defamation’ Albanian Media Institute”, pg 5:
http://www.institutemedia.org/Documents/PDF/Self%20regulation%20and%20defamation.pdf accessed 01 May
2016
15 Council of Europe, "Recommendation No. R (2000) 7 of the Committee of Ministers to member states on the
right of journalists not to disclose their sources of information", appendix, definitions c. and d.
16 Ethical Code of Albanian Media, Albanian Media Institute 1996 [KodiEtikiGazetareve]
17 Para. 5, point 3, Ethical Code of Albanian Media, Albanian Media Institute 1996 [KodiEtikiGazetareve]

ELSA Albania
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According to the Article 17 of Law “On Right of Information”,18
the right of information can be
restricted in cases when it is necessary, proportional and if the information impairs the below-
mentioned interests:
a) The right of a private life;
b) Commercial secret;
c) Copyright;
d) Patents.
It does not explicitly refer to journalists, but this can be interpreted as a way for journalists to
disclose their sources for necessary cases, as mentioned in the above-stated article.
Different provisions provide cases when the breach of confidentiality may arise, but on the other
hand there are no specific articles in the national framework establishing sanctions for the breach
of confidentiality. The Statute of the Albanian Media Institute stipulates that a member of this
association may be excluded if his/her activity is in contradiction with the obligations and the
ethics of the Statute and his/her moral figure and activity seriously damages the reputation of the
association.19
Therefore, sanctions imposed by this association are made only in certain cases
where the board of the association considers as an infringement of the principles imposed in its
Statute. These sanctions can only affect membership of the association, by penalizing in a moral
and ethical way, without any legal sanctions.
According to the law “for the Protection of Personal Information”20
, journalists have to respect
the integrity of the person and the provisions envisaged in this law, since in case of infringement,
Article 39 of this law provides the administrative sanctions for the misuse of the personal
information.
Albanian lawmakers should adopt legislation that specifically establish that principle and bar
judges from drawing negative inferences from journalist defendant’s refusal to disclose the
identity of their sources.21
4. Who is a “journalist” according to the national legislation? Is it, in
your view, a restricted definition for the purpose of the protection of
journalistic sources? What is the scope of protection of other media
18Article 17. Law n. 119 (On the Right to Information) 2014 [Per tedrejten e Informimit ne RepublikënsëShqipërisë]
19Article 13
20Law N. 9887, 2008, changed with the law n. 48/2012
21The Cost of Speech, Violations of Media Freedom in Albania, Human Rights Watch, Vol. 14, No.5 (D), June 2002
pg 26

ELSA Albania
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actors? Is the protection of journalists’ sources extended to anyone
else?
Defining a journalist and journalism is both elusive and problematic. As journalism undergoes a
profound shift toward the electronic, it is difficult to figure out who is covered by the term and
crafting the definition too narrowly excludes certain speakers from the benefits afforded to
journalists.22
In Albania, the term ‘journalist’ has a wide meaning, not explicitly defined in national legislation.
Generally, a journalist is considered a person who has graduated in “Journalism” from the
relevant faculty of any University in Albania.23
However, the media community considers a
journalist as anyone engaged in the process of newsgathering and reporting for written or
broadcasting media. This is also evidenced by research that shows that only 53% of journalists
have a degree in journalism.24
Additionally, self-regulation mechanisms like several journalists’ associations do not necessarily
put any criteria related to the education as regards to the membership. For example, the Statute
of Albanian Media Institute provides the criteria for who “will be accepted as a member of the
association: every journalist older than 18 years who has been working for three consecutive
years in any media entity…”25
The role and tasks of a ‘journalist’ are provided by the Code of Ethics of the Albanian Media
Institute. According to this Code, “journalists have the right to obtain information, to publish
and to criticize. Information should be truthful, balanced and verified.”26
Journalism is a function shared by a wide range of actors, including professional, full-time
reporters and analysts, as well as bloggers and others who engage in forms of self-publication in
print, on the Internet or elsewhere.27
With regard to the other media actors, Albanian legislation
does not provide any definition.
The protection of journalistic sources is guaranteed by Article 44 of the Law No. 8410 “On
Public and Private Radio and Television”, which states that “confidentiality of sources of
information (including material gathered by journalists) is guaranteed. They are disclosed only in
special cases provided by law.”
22 Greg Leslie, “Who is a journalist and why does it matter?”, [2009] pg.4
23 See: The Internal Regulation of “Faculty of History and Philology” , University of Tirana
24 Ramadan Cipuri , “Albanian journalist between the Professional Standards and external pressures”
25 Statute of Albanian Media Institute, Article 9
26 Para 3. Ethical Code of Albanian Media, Albanian Media Institute 2006 [Kodi Etik i Gazetareve]
27 UN Human Rights Committee 2011, 102nd session, General comment no.34, ICCPR, para 44
http://www2.ohchr.org/english/bodies/hrc/docs/gc34.pdf accessed 28 April 2016.

ELSA Albania
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Although Albanian Legislation does not provide an explicit provision with regard to protection
of other media actors, in our view, the above article, used to imply an wide protection of sources
of information not only to the journalist themselves but leaving it open for other media actors as
well.
The right of journalists not to disclose their sources of information is included as a principle by
the Law for Audiovisual Media in Republic of Albania, which provides that the audiovisual
operators, are ruled by the principle of confidentiality of the sources of information.28
On the other hand, an implicit protection of the sources of information is provided by Law No.
119/2014 on “Freedom of Information” which states that the “freedom of information is
restricted, if necessary, proportionate and if that information would violate professional secrecy
guaranteed by law.”
From the above, it can be concluded that sources of information of journalists are generally
protected, even though not clearly nor in a detailed manner.
5. What are the legal safeguards for the protection of journalistic
sources? How are the laws implemented? How are the legal safeguards
combined with self-regulatory mechanisms?
The protection of journalistic sources undermines the protection of information and journalists'
independence, serving as a direct contribution and a guarantee to the quality of the information.
In most countries where a law protecting journalistic sources is adopted, the number of cases
incriminating journalists on this matter has decreased or can be more easily fought back at a legal
level. In countries were no such law is adopted, journalistic sources are more often threatened.29
Regarding the legal safeguards on this issue, it can be concluded that there is no national law
dealing with the issue of the disclosure of journalistic sources.30
However, as it was laid down
above, pursuant to article 159 of the Criminal Procedural Code - professional journalists cannot
reveal information regarded as professional secrets, hence their sources. However, if the data is
essential in proving the criminal offence and the source is the only way to prove this, the court
can order the journalists to reveal their sources. In light of this provision, given the fact that the
28 Article 4. Law n. 97 (For Audiovisual Media in Republic of Albania) 2013, [Ligji per Median Audiovizive ne
Republiken e Shqiperise)
29 Anthony Bellanger from Jason N. Parkinson ‘Journalism in the Age of Mass Surveillance’ [2014]
https://www.nuj.org.uk/campaigns/safeguarding-journalists-and-their-sources/ accessed 27 April 2016.
30 Ilda Londo ‘Self-regulation and defamation’ Albanian Media Institute, pg5:
http://www.institutemedia.org/Documents/PDF/Self%20regulation%20and%20defamation.pdf. accessed 01 May
2016

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disclosure of the source happens only during a testimony in criminal court proceedings, the
information can be accessed only by the parties involved therein. The general rule provided in
the Criminal Procedure Code is that the proceedings are open to the public, emphasizing the
publicity of the hearing.31
Nevertheless, according to Article 340/1/c, which provides the cases
of closed hearings, the court decides to hold the court examination or some of its actions in
camera when it is necessary to protect the witnesses or the defendant.32
On the other hand, the Criminal Code provides some sanctions and penalties in case of refusal,
as laid out in the article 307 which states that: “the offender can be fined or imprisoned up to
one year and if proven that the reason for refusing to testify is personal gain, the sentence of
imprisonment can be up to three years.” In this framework, since the disclosure of the source is
in light of an obligatory testimony, which is essential in proving a criminal offense, the witness
(in this case the journalist) has no possibility to avoid this obligation.
From another perspective, there are no legal provisions regulating the relation between
journalists and their sources in these cases. Journalists can only appeal to the Code of Ethics or
their consciousness in finding out whether to reveal their source or not. The revised Code of
Ethics contains a provision stipulating that journalists should not reveal their sources, unless they
have obtained explicit consent.33
Albania does not have a unified piece of legislation regarding the regulation of media in general.
There are totally different regulation regimes for print and electronic media. The print media
operates in an almost total lack of legal regulation on press. Instead, it is subject only to
regulation by competition and commercial laws. After the law on Print Media was repealed in
1997, as it was considered too restrictive and entirely inadequate to the Albanian context, the
Law on Press was passed. However, it contains only two provisions that guarantee the freedom
of press in a general and vague manner.34
On the other hand, the legal framework on the broadcasting activity in Albania is laid down
firstly by the Law on Public and Private Radio and Television, adopted in 1997, and then by the
Law on Audio-visual Media, adopted in 2013. According to the law in force, the main body
responsible for the implementation of the law is the regulatory authority: Audio-visual Media
Authority (AMA), which replaced the National Council of Radio and Television (KKRT). AMA
is a public independent legal body which operates pursuant to the provisions of the mentioned
law and the effective legislation in the Republic of Albania.
31 Article 339/1 of the Criminal Procedure Code: "The hearing shall be public otherwise it shall be null and void".
32 Article 340, Cases of closed hearings:
1. The court decides to hold the court examination or some of its actions in camera: c) when it is necessary to
protect the witnesses or the defendant.
33 ibid.
34 ibid.

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In discharging its functions, the AMA must assure, among others, the preservation and support
of democratic values regulated in the Constitution, especially those related to the freedom of
speech.35
The AMA must also encourage the public service broadcasters to meet objectives in accordance
with the provisions of this law. In doing so, the AMA has the competence to draft and adopt
codes and rules of audio-visual broadcasts and other bylaws in implementation of the Law on
Audio-visual Media. In the same time, the AMA has the right to monitor the implementation of
the law by entities exercising their activity in this field and, in case of infringements, it may
impose sanctions.36
Nevertheless, as a matter of fact this authority has never ventured into any
efforts to guarantee the implementation of these particular provisions so far.37
The recent huge technological developments in the area of media have increasingly complicated
its supervision in the legal perspective. In that context, it is admitted that media self-regulation
appears to be a solution to increase media accountability while offering more flexibility than state
media regulation.38
In this framework, a self-regulation mechanism can be prescribed as a joint
endeavor by media professionals to set up voluntary editorial guidelines and abide by them in a
process open to the public. By doing so, the independent media accept common responsibility
for the quality of the public discourse, while fully preserving their editorial autonomy in shaping
it.39
Even though there will always be a need for legal guarantees on the freedom of the media, just as
legal definitions of the necessary restrictions are needed, however, to ensure that media is
fulfilling its role as watchdog of governments (and not only), it needs as little state interference as
possible. Self-regulation can help prevent unnecessary media legislation and provide an
alternative to courts for resolving media content complaints. 40
In contrast to formal and
bureaucratic regulation mainly by state and government, self-regulation refers to responsibilities
assigned to media operators to implement by themselves or that are voluntarily chosen by them.
Such rules often have the character of desirable goals, guidelines or principles, rather than fixed
35 Article 18 "Objectives of AMA's activity" of the Law n. 97 (On Audio-visual Media in Republic of Albania) 2013
[Për mediat audiovizive në Republikën e Shqipërisë]
36 Article 19 "AMA's Functions" Law n. 97 (On Audio-visual Media in Republic of Albania) 2013 [Për mediat
audiovizive në Republikën e Shqipërisë]
37 Ilda Londo ‘Self-regulation and defamation’ Albanian Media Institute, pg5:
http://www.institutemedia.org/Documents/PDF/Self%20regulation%20and%20defamation.pdf. accessed 01 May
2016
38 Adeline Hulin and Mike Stone ‘The Online Media Self-Regulation Guidebook’, [2013]
http://www.osce.org/fom/99560?download=true accessed 01 May 2016.
39 Miklós Haraszti ‘The Media Self-Regulation Guidebook’ Office of the OSCE Representative on Freedom of the Media,
[2008] http://www.osce.org/fom/31497?download=true: accessed 06 May 2016.
40 ibid.

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18
or compulsory standards to be achieved. They are ‘policed’ either within and by the media
organization itself or by some intermediate body representing public and industry interests.41
In this meaning, in Albania there are no specific media self-regulation mechanisms which
address concretely the issue of protection of journalistic sources. There is a negative correlation
between a lack of a Journalistic Code of Ethics and a possible self-regulation prospect in
professional terms, producing flaws in institutional and democratic standards expected.42
The last attempt to change the situation was the draft law on Freedom of the Press which tried
to provide provisions for the establishment of an Order of Journalists that would serve as a
regulator of the media community. This was strongly rejected as it was considered a structure
that must be established upon the free will of journalists and not initiated by Parliament, or
legally bound to report to the Parliament. According to this bill, all journalists would be obliged
to become members of this Order and to adhere to its regulation, a system modeled after the
Italian system in this area.43
It was considered an excessive legal regulation, by the media
community at the time, which was keen to adopt a more self-regulatory approach instead of this
kind of intervention by the state.
But, in fact, self-regulation so far in Albania has been almost inexistent.44
The two main
associations, the League of Albanian Journalists and the Union of Albanian Journalists, which
remain extremely weak, have not made any notable attempts to raise awareness among
journalists and organize them for their common good.45
The main code of ethics recognized by the media community in general, since the moment of its
signing in 1996 and its revision in 2006, is the Code drafted with the initiative of the Albanian
Media Institute to which we have referred above.46
It covers the usual areas intended to promote
responsibility in the daily work of journalists, such as the confidentiality of sources among
others. The first Code was adopted in 1996 and although it was well-written by providing
provisions which covers most of the problems faced by journalists, had as the main flow of this
attempt to self-regulation the lack of an implementing mechanism that would supervise
journalists' conduct in relation to the Code. In this framework, the main challenge of the new
41 Belina Budini ‘Ways to Establish Self-Regulation on the Part of the Albanian Electronic Media in Coherence with European
Union Prospects’ http://dspace.epoka.edu.al/bitstream/handle/1/1323/Ways%20to%20Establish%20Self-
Regulation%20on%20the%20Part%20of%20the%20Albanian%20Electronic%20Media%20in%20Coherence%20wi
th%20European%20Union%20Prospects.pdf?sequence=1 accessed 07 May 2016
42 ibid
43 Ilda Londo ‘Self-regulation and defamation’ Albanian Media Institute:
http://www.institutemedia.org/Documents/PDF/Self%20regulation%20and%20defamation.pdf accessed 07 May
2016.
44 ibid
45 ibid
46 Albanian Media Institute: http://www.institutemedia.org

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Code of Ethics in 2006 was the establishment of a self-implementing mechanism. After long
discussions, the work group drafted a statute which provided a body referred as the Council of
Ethics, in a form of a registered association, since in the legal point of view, it guarantees the
broadest representation. According to its statute, members of the Council can be natural or legal
persons, media outlets, civil society organizations working on freedom of expression, journalists,
freelancers, columnists, etc. Hence, the general principle is that membership is voluntary and
unlimited, but a broad range of membership is clearly preferred in order to provide the greatest
legitimacy possible.
In addition, two permanent commissions would be established within the Council of Ethics, one
for print media and the other for electronic media. These would be the bodies that will examine
the complaints regarding possible ethical violations. The public can also lodge complaints to the
commissions of ethics, as long as the media they complain against are members of the Council
of Ethics.47
Unfortunately, efforts to establish such a council of ethics, as a media self-regulation
in Albania, seemed to be merely an attempt, as far as this body is totally inexistent in the country.
Beside the Council of Ethics as it was designed in its draft-statute, in July 2015 was formally
established, by a number of journalists and with the support of the Council of Europe, a body
named as the Council of Media. The purpose of this self-regulation mechanism is to guarantee
the respect of the Code of Ethics by the actors in the entire media area, and to contribute to the
freedom of media in Albania.48
The concrete results of this initiative are not yet evident and
notable, due to the short time of its establishment.
Besides the Code of Ethics, there have been some other sporadic initiatives to establish internal
codes of ethics in some private media, such as "Spekter Group". As an illustration, the code of
ethics of this company outlines how journalists should deal with their sources, cases when
anonymity is allowed and other professional issues. The code is implemented by an ethics
bureau, composed by one representative employed by the company.49
Nevertheless, the lack of the interest of the media owners to be involved in self-regulation
development is evident. The professional media bodies in Albania do not adhere to syndicates or
any other efficient professional organization and the competition between the media outlets is
more important than their agreement upon the professional standards.50
Overall, there is a lack
of awareness so as to self-regulation principles and benefits.
Another eventual mechanism successfully proved as a means of achieving self-regulation in the
media is the institution of the "news ombudsman". This media actor is considered as the
conscience of the news reporting. In light of this development in the Western Europe, there is
47 Article 12. Draft Statute of the Association “Council of Journalism Ethics,” February [2006]
48 http://www.javanews.al/fomohet-keshilli-i-medias/ accessed 01 May 2016
49 http://www.shekulli.com.al/ accessed 01 May 2016
50 Zlatev O. "Media accountability systems (MAS) and their applications in South East Europe and Turkey” in Professional
Journalism Self-Regulation. Paris, United Nations Educational, Scientific and Cultural Organization [2011]

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no tradition of an institutionalized news ombudsman in Albania, but the role of the ombudsman
is occasionally taken by academic personalities and senior journalists related to specific events
when they chose to have their say.51
On the other side, although there is no specific News Ombudsman, there is a general self-
regulatory instrument such as the People's Advocate (Ombudsman) in Albania accessible by
every person, without restrictions related to the profession. It is an institution designed,
following the legislation of other countries of Europe, which have previously created such a
mechanism. The main task is to defend the rights, freedoms and lawful interests of individuals
from unlawful and incorrect acts or omissions of public administration bodies as well as third
parties acting on its behalf. Its mission is the prevention of potential conflicts between public
administration and individuals. The Ombudsman in Albania acts on the basis of the complaint
or request submitted to his office. He also operates on his own initiative, for special occasions
made public, but further must take the consent of the person concerned.52
It is not the
Ombudsman who decides directly himself to restitute the rights of petitioners, but he makes
recommendations to remedy the violation of the right by a public administration body which has
caused the violation. In cases where the relevant body does not respond to the recommendations
of the Ombudsman, the latter may address gradually to higher bodies in a hierarchy up to the
Assembly (Parliament) with a report proposing concrete measures for restitution of the violated
right.53
The Ombudsman may not start or, if started, can terminate the investigation if the same
case has been decided or is being examined by the prosecution office or the court. In these cases
the Ombudsman has the right to request information from those authorities. He has the right to
request information or documents related to the matter under consideration, even if they are
classified as state secrets.
51 Belina Budini ‘Ways to Establish Self-Regulation on the Part of the Albanian Electronic Media in Coherence with European
Union Prospects’ http://dspace.epoka.edu.al/bitstream/handle/1/1323/Ways%20to%20Establish%20Self-
Regulation%20on%20the%20Part%20of%20the%20Albanian%20Electronic%20Media%20in%20Coherence%20wi
th%20European%20Union%20Prospects.pdf?sequence=1 accessed 07 May 2016
52 Law n.8454 (Law on the People's Advocate in the Republic of Albania) 1999 [Per Avokatin e Popullit ne
Republiken e Shqiperise]
53 Albanian People's Advocate oficial page: http://www.avokatipopullit.gov.al/en/

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6. In the respective national legislation, are the limits of non-disclosure
of the information in line with the principles of the Recommendation
No R (2000) 7? What are the procedures applied? Is the disclosure
limited to exceptional circumstances, taking into consideration vital
public or individual interests at stake? Do the authorities first search
for and apply alternative measures, which adequately protect their
respective rights and interests and at the same time are less intrusive
with regard to the right of journalists not to disclose information?
As a member State to the Council of Europe, the Republic of Albania has undertaken the
commitment to the fundamental right to freedom of expression as guaranteed by Article 10 of
the Convention for the Protection of Human Rights and Fundamental Freedoms. Due to the
importance of the protection of the confidentiality of journalists' sources for the media in a
democratic society, national legislation should provide accessible, precise and foreseeable
protection. It is in the interest of states, invoking the need for democratic societies, to secure
adequate means of promoting the development of free, independent and pluralist media.
The domestic law and practice in Albania should and needs to provide for explicit and clear
protection of the right of journalists not to disclose information identifying a source in
accordance with Article 10 of the Convention and the principles established therein, which are to
be considered as minimum standards for the respect of this right.54
In this framework, the protection of journalists' sources of information constitutes a basic
condition for their work and freedom as well as for the freedom of the media in general.
In this perspective, in line with the principles of the Recommendation No R (2000) 7 of CoE,
Albania has the obligation to bring them to the attention of public authorities and the judiciary
as well as to make them available to journalists, the media and their professional organizations.55
As it is noted above, Albania does not have specific law (lex specialis) on protecting the right of
journalists not to disclose their sources of information.
The Law on Audio-visual Media in the Republic of Albania provides only one subparagraph
concerning this topic. Article 4.2.c, as a general provision elaborating fundamental principles of
‘audio-visual broadcasts’, mentions among others the principle of maintaining the secrecy of
information sources.
54 Principle 1 of the Recommendation No. R (2000) 7 of the Committee of Ministers to member states on the right
of journalists not to disclose their sources of information
55 Principle 5 of the Recommendation No. R (2000) 7 of the Committee of Ministers to member states on the right

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Pursuant to the provisions of this law, the AMA which is the regulatory institution in the field of
audio-visual broadcasts and their support services in Albania, has drafted and adopted the
Broadcasting Code as a sublegal act regulating principles, rules and practices of broadcasting.
The issue of journalists' information sources is addressed in only one line of this Code, in the
Section 4 "Broadcasting of the Information Programs", where it is provided within a sentence
that: "Journalists have the right not to disclose their sources of information".
In the framework of domestic acts providing the right of maintaining the secrecy of information
sources, as it is mentioned above, the Code of Ethics adopted by the Albanian Media Institute,
has no legal consequences meaning that it is not binding to journalists and other subjects from
the legal perspective. Nevertheless, it sets out minimum standards and criteria for the activity of
journalists in Albania. In the third section of this Code is regulated the issue of relations with
sources, suggesting that journalists should not divulge the name of a person who has provided
information on a confidential basis, unless consent has been explicitly given by the person
concerned. According to this provision, the right to the anonymity may be breached only if the
information in question relates to the planning of a criminal act.
On the other side, the only national law providing in the same provision the right of journalists
to maintain professional secrecy and the respective limitation of this right, is the Criminal
Procedure Code of the Republic of Albania. In Section I of Chapter II, named "Types of
Evidence", of this Code is provided in the Article 159.3 the right of journalists to save the
professional secretly.56
According to this provision, certain professionals, including journalists, may not be compelled to
testify on what they know due to their profession, except in cases where they have the obligation
to report to proceeding authorities (in light of Article 300 of Criminal Code "Failure to report a
crime"). This is particularly applied to the names of persons whom professional journalists have
obtained information from during the course of their profession.
Paragraph 2, which is also applicable to journalists, provides that when the court has reasons to
believe that the claim made by these persons in order to avoid the testimony has no grounds, it
orders the necessary verification. When such claims result unjustified, the court orders the
witness to testify.
In this line, it is also provided specifically in the paragraph 3 that when the information is
indispensable to prove the criminal offence and the truthfulness of the information may only be
proved through identification of the source, the court orders the journalist to disclose the source
of his information. In regard with this paragraph, for the limitation to be applied must co-exist
two cumulative conditions. First, is the fact that the information taken by the source must be
indispensable to prove a criminal act, and second, that there is no other way to prove the
56 Law No. 7895(Criminal Code of the Republic of Albania) 1995 [Kodi Penal i Republikës së Shqipërisë]

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truthfulness of this information, except through revealing the source.57
The legitimate interest in
the disclosure of the source sanctioned in this provision is the prevention of criminal acts,
similar with the second paragraph of Article 10 of the Convention. In this provision, no
distinction is made between offences or minor crimes and “major” or serious crimes.
According to the Explanatory Memorandum of the Recommendation, only the prevention of
the latter category can possibly justify the disclosure of a journalist's source.
With due regard to this provision, it is a positive step the fact that professional journalists, in
line with principles set out in the Recommendation, are protected from the obligation to testify
in a trial, in order to maintain their sources of information. What is important to notice is that
the court is the sole authority which has the exclusive competence to decide whether this
right shall be derogated or not. In our opinion, by giving this competence only to the court, it
is guaranteed the essence of the right and provided the appropriate legal security for journalists.
Furthermore, it is accomplished in the ratio of Principle 5.a of the Recommendation, which states
that the motion or request for initiating any action aimed at the disclosure of information
identifying a source should only be introduced by persons or public authorities that have a direct
legitimate interest in the disclosure.
What might be problematic is the fact that in this provision is not provided any specific
alternative measure with the intention of protecting journalists right not to disclose source of
information, in order to be less intrusive to this right. It is completely at the discretion of the
court to decide on the issue of protecting the journalist’s professional secrecy, search for
and apply proportionate, alternative measures.
It is also not specified in the so-called procedure of verification, stated in paragraph 2, in case the
court suspects that the journalist's claim to apply this protection has no grounds. In the light of
this limitation, there is not a clear statement in which grounds would be a hypothetical suspect
by the court. Nevertheless, it is widely acceptable that the presumption that the court is the most
effective authority to protect and guarantee the right of journalists provided in the national
legislation.
In addition, another guarantee provided by the Criminal Procedure Code, is the fact that the
eventual disclosure of sources of information shall be made in a form of a trial testimony, which
is generally given during the court proceedings, in the presence of the parties, both prosecutor
and defendant. The interrogation of journalists as witnesses in the court proceedings cannot be
made by prosecutor or police agents, in a different venue except the court.58
57 Artan Hoxha, Halim Islami and Ilir Panda: "Criminal Procedure", 2012
58 Article 157/1 "The duties of the witness": The witness is obliged to appear before the court, to observe its orders
and to say the truth for the questions brought before him.

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Another problematic area of the Albanian procedural law might be the fact that in Article 159, it
has not implemented Principle 5.e of the Recommendation, which states that 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, for example by
excluding the public from the disclosure with due respect to Article 6 of the Convention, where
relevant, and by themselves respecting the confidentiality of such a disclosure. Nevertheless, as
in general court proceedings, even in this case the court has the discretion to decide whether it
should exclude the public from the disclosure or not.59
It is encouraging the fact that Article 159 provides that the reveal of the source of information is
the very last remedy applied by the court. It comes as a necessity only if there is no other way to
prove an eventual criminal offence. In light of the other alternative investigative measures
available in the Albanian national law, according to the Criminal Procedure Code, beside the
testimony, the types of proofs include interrogation of the defendant,60
the confrontation,61
the
identification and recognition,62
experiments,63
expertise,64
material evidence and documents.65
These proofs are available only if they are taken by the legal means of searching evidence such as
the examination, inspections, seizure and surveillance.66
On the other side, Albanian national legislation does not provide, in its legal system, the same
protection for other persons who, by their professional relations with journalists, acquire
knowledge of information identifying a source through the collection, editorial process or
dissemination of this information, as it is stated in Principle 2 of the Recommendation.67
Even
they should equally be protected under the principles established therein, there are no provisions
securing this principle. The knowledge of the source has to be acquired by these other persons in
the framework of their ‘professional relations with journalists’. Secretarial staff, journalistic
colleagues, printing staff, the editor or the employer of a journalist might have access to
information identifying a source. It is therefore necessary to extend the protection to these
persons in order to maintain the secrecy of a source towards third persons or the public, if they
are not already covered by the definition of journalist under national systems of protection.68
59 Article 340, Cases of closed hearings:
1. The court decides to hold the court examination or some of its actions in camera: c) when it is necessary to
protect the witnesses or the defendant.
60 Articles 166-168 of the Criminal Procedure Code
61 Articles 169-179 of the Criminal Procedure Code
62 Articles 171-175
63 Articles 176-177
64 Articles 178-186
65 Articles 187-197
66 Chapter III of the Criminal Procedure Code
67
Principle 2 of the Recommendation No. R (2000) 7 of the Committee of Ministers to member states on the right
68
http://www.coe.int/t/dghl/standardsetting/media/doc/cm/rec(2000)007&expmem_EN.asp

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Within the scope of Article 159, falls only the one named as "professional journalist", without
explaining what this term means. In order to exclude any misinterpretation or ambiguity, it
would be relevant to modify and reword this provision by defining clearly the terminology used
therein. Nevertheless, we consider that in this situation the term "professional journalist" should
be interpreted by the court having regard to the case-law of the European Court of Human
Rights.69
In the judgment of De Haes and Gijsels v. Belgium (27 February 1997, para. 55), for
example, the European Court of Human Rights extended the right not to disclose information
identifying a source to an editor and a journalist alike.
7. In the Recommendation No R (2000) 7 the following principles
should be respected when the necessity of disclosure is stated: absence
of reasonable alternative measures, outweighing legitimate interest
(protection of human life, prevention of major crime, defence of a
person accused or convicted of having committed a major crime).
Under which criteria can the interest in the disclosure outweigh the
interest in the non-disclosure?
The right of journalists not to disclose their sources of information is part of their right to
freedom of expression under Article 10 of the Convention which, according to the ECHR's
interpretation, is binding on all Contracting States.
It is widely accepted that the right to freedom of expression and information constitutes one of
the essential foundations of a democratic society and one of the basic conditions for its progress
and the development of every individual, as expressed in the Declaration on the Freedom of
Expression and Information of 1982.
The "public interest" is an amorphous concept, which is typically not defined in access to
information legislation. This flexibility is intentional. Legislators and policy makers recognise that
the public interest may change over time and according to the circumstances of each situation. In
the same way, neither does the law try to define categorically what is "reasonable."70
Courts need to balance the two public interests that stand in tension in journalist’s sources
protection cases. A miscalculation of the public interest in these cases would cause the risk of
moving away from the main intention. The assessment of the public interest should rely on a
case-by-case basis. Whether the disclosure of a journalistic source will be deemed to be in the
interest of the public outweighing the interest of the non-disclosure, this usually depends upon
69
Goodwin v the United Kingdom [1996] European Court of Human Rights, para 34
70
Megan Carter and Andrew Bouris, “Freedom of Information, Balancing the Public Interest” [2006] pg 3-14

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the facts of the particular case. Anyway, there are some objective criteria which need to guide
courts on deciding whether the disclosure is relevant or not.
The aim of the invoked Recommendation is also to set out the requirements for an adequate
protection of the right of journalists not to disclose their sources of information, in order to
safeguard freedom of journalism and the public's right of information from the media. The
protection of the professional relationship between journalists and their sources is in this respect
of higher importance than the actual value of the information for the public, as the ECHR has
held.71
In this line, any disclosure of a source may have a chilling effect on the readiness of future
sources to provide journalists with information, irrespective of the kind of information provided
by the source. The guidelines appended to this Recommendation therefore establish common
principles for the right of journalists not to disclose their sources of information in the light of
Article 10 of the European Convention on Human Rights.
In evaluating a violation of the Article 10 of the Convention, in accordance with paragraph 2, the
Court needs to examine whether there has been an “interference” under this provision; whether
this interference was “prescribed by law”, whether it pursued a “legitimate aim” and is
“necessary in a democratic society”.
Any restriction of the right of journalists not to disclose information identifying their source and
of the public interest in the non-disclosure must be prescribed by law and based on a legitimate
interest among the grounds provided for in the second paragraph of Article 10. It must be a
legitimate intention to restrict the right to freedom of expression. Any limitation of this right
must be truly necessary, in response to a pressing social need.
When evaluating whether a particular legitimate interest under this provision justifies the
restriction of the right to freedom of expression, the Court applies a balancing test which
determines whether a restriction is "necessary in a democratic society".72
Moreover, the disclosure must
accomplish its intention based on the public interest; otherwise it would loose the essence of this
measure.
In the view of ECHR, there must exist a reasonable relationship of proportionality between the
legitimate aim pursued by the disclosure and the means deployed to achieve that aim.
The concrete interest of the person or public authority in the disclosure of the source must be
"sufficient to outweigh the vital public interest in the protection of the (...) journalist's source".73
Only exceptional cases where a vital personal or public interest is at stake might justify or be
proportional to the disclosure of a source.
71
Goodwin v the United Kingdom [1996] European Court of Human Rights para. 37
72
Sunday Times v the United Kingdom [1991], European Court of Human Rights para. 50
73
ibid para 45

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According to the ECHR, there must be a careful balance between the disclosure and the non-
disclosure of journalists sources, in order to protect the free press and hence the fundamental
democratic right to right to freedom of expression.
In estimating the importance to be given in favor of disclosure there is a wide spectrum within
which a particular case must be located. If the party seeking disclosure shows, for example, that
his very livelihood depends upon it, this will put the case near one end of the spectrum. If he
shows no more than that what he seeks to protect is a minor interest in property, this will put
the case at or near the other end.
On the other side the importance of protecting a source from disclosure in pursuance of the
policy underlying the statute will also vary within a spectrum. One important factor will be the
nature of the information obtained from the source. The greater the legitimate interest in the
information which the source has given to the publisher or intended publisher, the greater will
be the importance of protecting the source. But another and perhaps more significant factor
which will very much affect the importance of protecting the source will be the manner in which
the information was itself obtained by the source. If it appears to the court that the information
was obtained legitimately this will enhance the importance of protecting the source. Conversely,
if it appears that the information was obtained illegally, this will diminish the importance of
protecting the source unless, of course, this factor is counterbalanced by a clear public interest in
publication of the information.74
In that context, the Albanian domestic legislation, and more concretely the Code of Criminal
Procedure, as it is noted above, provides in the Article 159 that the disclosure of the sources of
information is the very last remedy applied by the court. It comes as a necessity only if there is no other
way to prove an eventual criminal offence. Thus, for the limitation to be applied the information taken
by the source must be indispensable to prove a criminal act, and there must be no other way to
prove the truthfulness of this information, except through revealing the source.
The legitimate interest in the disclosure of the source sanctioned in this provision is the
prevention of criminal acts, similar with the second paragraph of Article 10 of the Convention,
being in line with the criteria explained above. Nevertheless, as it is noted above, there is no
distinction between offences or minor crimes and “major” or serious crimes, as it is set out in
the Recommendation. There are also no specifications regarding the interest for certain crimes,
except the fact that the court is the sole authority which has the exclusive competence to decide
whether the disclosure shall be made or not.
In this perspective, it can be assumed that the disclosure of journalistic sources in Albania is only
partially in line with the Recommendations and standards explained above.
74
The House of Lords decision in the Goowin case (Lord Bridge' opinion)

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8. In the light of the case-law of the European Court of Human Rights,
how do national courts apply the respective laws with regard to the
right to protect sources? In particular, how do they balance the
different interests at stake?
Freedom of expression constitutes one of the main foundations of a democratic society, one of
the basic conditions for its progress and for the development of every human.75
The European
Court of Human Rights has emphasized and set out the standards for different aspects related to
the Freedom of Expression and particularly for the right to protect the sources of information.
The courts in Albania, when interpreting and applying the law, bring to their attention the
consolidated jurisprudence of the European Court of Human Rights and often base their judicial
reasoning according to the case-law of the Court.
With regard to the right to protect sources, to the best of our knowledge, national courts during
their judicial reviews have not had cases referring the right to protect sources of information. In
Albania there is no case-law considering the right of non-disclosure of sources but different
claims have been brought before the court with regard to Freedom of Expression and the
national Courts of Albania have given various judicial decisions where you can see how national
courts consider the case law of the European Court of Human Rights and its standards.
Courts frequently make the erroneous assumption that journalists who refuse to disclose their
sources have acted in bad faith and are therefore guilty of malicious defamation. For example,
the District Court of Tirana, in its decision (Case Kryemadhi v. Patozi), failed to acknowledge
that the journalist’s right to protection of their confidential sources is an essential part of press
freedom.
9. What are the criteria for using electronic surveillance and anti-
terrorism laws, which may include measures such as interceptions of
communications, surveillance actions and search or seizure actions in
order to identify journalists’ sources of information? Are the national
law provisions accessible, precise, foreseeable and include clear
legislative norms in the context of surveillance and anti-terrorism
provisions?
Pursuant to Albanian Criminal Code, terrorism includes acts with the purpose of creating panic
in the population or to oblige national institutions, Albanian or foreign, to do or not to do a
specific crime, or to destroy or destabilise, in a serious manner, political, constitutional,
75
Handyside v the United Kingdom [1979], European Court of Human Rights, para 41

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economic or socially important structures of the Albanian state, another state, institution or
international organization.76
In the fight against terrorism, the general provisions of the national legal framework are
established to prevent and punish all kinds of crime, including terrorism. In accordance with the
national legislation, the legal provisions for the fight against terrorism are incorporated in
national law. Article 28/2 of the Criminal Code states that: “a terrorist organisation is a special
form of criminal organisation, composed of two or more persons who have a sustainable
collaboration in time with the aim of committing terrorist acts with a purpose”.77
Chapter VII of
this Code contains more than 17 articles after the amendment. They express all the forms of
terrorism, including: offences with terrorist purposes, terrorist organisations, financing of
terrorism, collecting funds for the financing of terrorism, recruitment of one or more persons
for committing acts for terrorist purposes or terrorism financing, training for committing
purposed terrorist acts, promotion, public and calling propaganda for the execution of activities
and threats for the purposes of conducting terrorist acts, etc.78
The procedural law provides for the use of different technical means for gathering evidence such
as: house searches, seizure of persons, search and seizure of documents, seizure and opening of
letters and other items to be delivered, telephone tapping, and other means of intercepting
communications (fax, e-mail), electronic surveillance and observation.79
The prosecution may
search persons when it considers that they may be concealing material evidence or items related
to a criminal offence. Furthermore, the court may order the seizure of bank documents,
negotiable instruments, sums deposited in current accounts etc., even if they are in safety vaults,
where there are reasonable grounds to suspect that they are connected to a criminal offence,
even if they do not belong to the defendant or are not in his name. Interception of
communication, according to the national Criminal Procedure Code, can be ordered, besides all,
for the person who is suspected that receives or transmit communications from the suspected
person and for the person, whom surveillance can lead to the discovery of the location or the
identity of the suspect.80
The surveillance may be allowed for:
- Crimes done voluntarily, which have a maximum conviction of jail time of no less than
seven years;
- Criminal offenses of insults and threats done with telecommunication devices.
In view of the present article, even if it is not referred explicitly to journalists, journalists can be
part of this surveillance to lead the investigations on the revelation of location or identity of the
person of interest. The surveillance can only be made with a warrant from the court, upon the
76 Albanian Criminal Code, Article 230, para.1.
77 https://www.coe.int/t/dlapil/codexter/Country%20Profiles/Profiles%202014%20Albania_EN.pdf accessed on
2nd May 2016.
78 Chapter VII of the Albanian Criminal Code
79 Articles 204, 205, 206, 221/1/2/3 and 221/c of the Code of Criminal Procedure
80 Law n. 7905 (Criminal Procedural Code of the Republic of Albania) 1995 [Kodii Procedures
PenaletëRepublikëssëShqipërisë] Article 221/3

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30
request of the prosecutor or the injured party, when there is enough evidence to pursue the
investigations.81
When there are reasonable grounds to think that a delay might seriously damage
an investigation, the prosecutor may authorise interception by a reasoned decision and informs
the court immediately within twenty-four hours.
In the Code of Ethics of the Albanian Media Institute, it is envisaged that journalists can reveal
their sources only in three cases: when the source has intentionally changed the story without
saying the whole truth; when the reference to reveal the name of the source is the only way to
avoid serious unavoidable damages and when the information is related to the planning of a
criminal act.
Moreover, pursuant to the Code of Criminal Procedure journalists are not obliged to testify
because of their professional secret, except in certain cases, when they are obliged to refer to the
authorities. The court has the authority to compel the journalist to reveal the identity of their
source.82
Improvements of investigation techniques are necessary in view of the increase of mass
communications through the Internet and communication software. According to Article 191/a,
in case of proceedings on criminal acts in the field of information technology, at the request of a
party, the Court orders the controller or the holder to deliver memorized computer data. Under
Article 208/a of the Code of Criminal Procedure, the court decides upon the sequestration of
these data and computer systems.83
Furthermore the National Informative Service in Albania (SHISH),84
has the duty to collect
information about terrorism, for the production and trafficking of narcotics, for the production
of mass destruction weapons and for crimes against the environment. The National Informative
Service also has the obligation to protect its methods and sources of information from
unauthorised interventions. When this institution has a strong conviction for an infringement of
the law, the National Informative Service informs the relevant institutions while protecting the
informative sources and the methods.85
There is not any national case-law, either concerning journalists’ or their sources of information’s
right to confidential communication and anonymity online, neither concerning any attempts by a
public authority to interfere in journalist’s right to encryption and anonymity online. Therefore it
81 Law n. 7905 (Criminal Procedural Code of the Republic of Albania) 1995 [Kodii Procedures
PenaletëRepublikëssëShqipërisë] Article 222/1
82 Law n. 7905 (Criminal Procedural Code of the Republic of Albania) 1995 [Kodi i Procedures Penale të Republikës
së Shqipërisë] Article 159/3
83p.5, https://www.coe.int/t/dlapil/codexter/Country%20Profiles/Profiles%202014%20Albania_EN.pdf
84 Law n. 8391 (For the National Informative Service) 1999 [Per Sherbimin Informativ Shteteror] Article 3
85 Law n. 8391 (For the National Informative Service) 1999 [Per Sherbimin Informativ Shteteror] Article 9

ELSA Albania
31
cannot be said that journalist’s right to anonymity and encryption online has not been violated in
Albania.
In conclusion, there are no explicit articles concerning journalists and the identification of their
sources, but under the previous articles mentioned before, journalists can be intercepted if they
have relevant information about terrorism. Such information may be delivered to the competent
authorities, if the National Informative Service considers this information as a threat to any
possible infringement of the law.
10. Can journalists rely on encryption and anonymity online to protect
themselves and their sources against surveillance?
The right to privacy emblematizes the substance of the process of democratisation in this
country.86
The Constitution of Albania has affirmed, and also guarantees, this complex and
fundamental right. The right to private life, affirmed in the constitution, includes the guarantee
given to the individual not to self-incriminate, the right for the protection of individual data, the
right to privacy from unauthorised intervention of the police and the confidentiality of the
correspondence.
Article 36 of the constitution of Albania inscribes the confidentiality of the correspondent:
“Freedom and secrecy of correspondence or any other means of communication are guaranteed.”
This is a provision addressed to citizens in general, while, as per the anonymity for journalists, it
is actually questionable whether the domestic legislation is clear, considering that the only
provisions found in light of anonymity is the Ethical Code of Albanian Media Institute.
The Code of Ethics emphasises the right to anonymity of the journalist, not anonymity online,
but anonymity in general as a liability of the journalist not to divulge the name of the person who
provided the confidential information, unless the person has clearly consented, as it is mentioned
above, the right to anonymity can be exceeded only in exceptional cases:
a) There is suspicion that the source has consciously distorted the truth;
b) The reference to the name of the source is the only way to avoid serious damage and is inevitable;
c) The information in question relates to the planning of a criminal act...”87
Regarding to anonymity online, Law on “Audiovisual Media in Republic of Albania” No.
97/2013, does not provide any provision to protect themselves and their sources of information
86 Igli Totozani, “The Right to Privacy and Albania”, March 2013, Newspaper “The Day”
87
Para 3 Ethical Code of Albanian Media, Albanian Media Institute 2006 [Kodi Etik i Gazetareve]

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against surveillance. This right can neither be drawn in context of other laws, nor through
Albanian jurisprudence, since there is no cases regarding this matter.
11. Are whistle-blowers explicitly protected under laws protecting
journalistic sources? Is there another practice protecting whistle-
blowers? Is the legislation prohibiting authorities and companies from
identifying whistle-blowers?
“Whistle-blower” means any person who reports or discloses information on a threat or harm to
the public interest in the context of their work-based relationship, whether it be in the public or
private sector.88
Whistleblowing is known as an instrument to prevent and detect corruption. Since
whistleblowing is aimed at the reporting of corruption, as fraud, misuse of public funds, bribery
for a favor in the private or public sector, in places and circumstances, that only few people can
know about these events, only individuals engaged in these events or that work closely with the
people engaged in these events. Therefore, these people should enjoy a certain level of
protection, because in most cases, they are subject of retaliation and legal issues.
In the case Guja v Moldova,89
the Grand Chamber of the European Court of Human Rights
considered the dismissal of a civil servant who had leaked information, a letter to the press,
revealing political pressure on the judiciary in a corruption case to be an illegitimate restriction of
the right to the freedom of expression, guaranteed under Article 10 of the Convention.90
The
sanction imposed on Guja was considered disproportionate and it could have a negative effect in
the future on civil servants’ willingness to denounce malpractices. This case is a very important
reference for every country in order to guarantee a protection to whistle-blowers and harmonize
the legislation protecting them.
In the Albanian legislation, the protection of whistle-blowers is not yet compromised in a single
legal act and is not explicitly found with this term. Moreover, legal disposition on whistleblowing
can be found in several laws, but there is not a provision that can be found under the law
protecting journalistic sources for whistle blowing.
In order to comply with the requirements of the Council of Europe to protect people who
report corruption, the Albanian parliament adopted, in 2006, the law “On co-operation of the
88
Recommendation CM/Rec (2014) 7 of the Committee of Ministers to member States on the protection of
whistle-blowers
89
Guja v Moldova [2008] European Court of Human Rights, para 73
90
Dirk Voorhoof, ‘Whistle-blowing and the Right to Freedom of Expression and information under the European Human Right
System’ (30 September 2013) <http://cmpf.eui.eu/seminars/whistle-blowing.aspx>, accessed 9 March 2016.

ELSA Albania
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public in the fight against corruption”.91
This law aims to protect the persons involved in the
reporting of corruption. The law on public co-operation is considered to comply with
international standards, but it does not cover any forms of sanctions, as unfair dismissal or
protection of the whistle-blower working status, which is usually what the whistle-blower fears
most and the cause of hesitation in ‘blowing the whistle’. Nevertheless, even if the law is praised
as a step forward in the fight against corruption and in the protection of whistle-blowers, it has
several weaknesses. One of the main weaknesses of this law is that it has not clearly stated the
responsible authority to conduct the preliminary investigation. A hypothesis in this regard may
be that the law is silent, because the denunciation is made within the institution where the
corruption has occurred. That being said, the law on public co-operation makes the protection
of whistle-blowers difficult and hard to put into practice.92
In May 2014, the Council of Ministers of Albania has adopted the Recommendation of Council
of Europe in 2013, in scope of fighting corruption in Albania as a key priority.93
Corruption cases from the employee are also envisaged within the Albanian Labour Code, where
it is stated that any unjustified measure or administrative sanction taken against employees that
have reasons to suspect cases of corruption and that highlight these cases to the responsible
people or authorities is invalid.94
Moreover, it is stated that the reports of these facts, which have
a connection with corruption, do not constitute an infringement of the professional secret. In
any unjustified measures or administrative sanctions taken against employees that have reason to
suspect cases of corruption and that denounce these cases to the responsible people or
authorities is invalid and the employees can resort to the courts to claim their right.
The Code of Administrative Procedure is aimed to protect the fundamental rights of the
individual or personal interests. There is not any explicit provision referring to whistleblowing in
this code, but it states that any individual may complain against any administrative act, or against
the refusal to enact the act, to the responsible body or his/her superior.95
Although, the
protection of whistle-blowers is not mentioned in any article, this code requires that the public
administration bodies, during the course of their activity, shall protect public interest and also
should not infringe the legitimate rights of private people.96
91
Law n. 9508 (Public cooperation in combatting corruption) 2006 [Për bashkëpunimin e publikut në luftën
kundër korrupsionit]
92 Arjan Dyrmishi, Elira Hroni, Egest Gjokutaj, ‘Whistle-blowers protection in Albania: An assessment of the Legislation and
Practice’ (Institute for Democracy and Mediation, 2013)
93 Decision of the Council of Ministers n.330, dated on 28.5.2014
94 Article 10, para 1.Law n. 10053, (The Labour Code of the Republic of Albania) 2009 [Kodi i Punes i Republikës
së Shqipërisë]
95 Law n. 8485 (The Code of Administrative Procedures of the Republic of Albania) 1999 [Kodi i Procedurave
Administrative të Republikës së Shqipërisë] Article 137 and 139
96 Ibid. Article 10

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34
The law on protection of collaborators of justice and witnesses is applied for criminal
proceedings that are sentenced to no less than 4 years’ imprisonment. 97
This law does not refer
explicitly to whistleblowing protection, nevertheless this law precludes any whistleblowing
activity in relation to proceeding on criminal offence pursuant to article 260 of the Criminal
Code on passive corruption of high state officials or local elected representatives.98
In cases of whistleblowing, the law on protection of collaborators of justice and witnesses often
fails to offer practical protection.
The law of 2006 “On Co-operation of the public in the fight against corruption” did not give
whistle-blowers a sufficient level of protection and it so far it is not successfully implemented.
Also, the laws mentioned above do not explicitly protect whistle-blowers. So, it is crucial to
implement a specific law for the protection of whistle-blowers in Albania and under this scope
the Parliament of Albania has prepared a draft law for the Protection of Whistle-blowers.99
Another aspect of interest to mention is that the draft law does not only involve public
administration, but also the private sector. This will require a well-studied mechanism to avoid
abuse and a proper harmonisation with the legislation in Albania.100
It is a known fact that
companies that have clear internal complaint mechanisms tend to respect the rights of their
employees and human rights in general. The position of whistle-blowers is more delicate, since
this action can damage their reputation, trust, position and function within the company, so he
needs sufficient protection to not fear any retaliation and financial damages.
The draft law creates a new mechanism to remove the suspicious practices and actions in the
workplace, by an employee in the public or in the private sector in the Republic of Albania.
Within the report by the whistle-blower, the High Inspectorate of Declaration and Audit of
Assets and Conflict of Interests (HIDAACI), will be responsible to gather all the necessary
information and to investigate the case, while preserving the anonymity of the whistle-blower.101
The new mechanism for whistle-blowers in the new draft law is built on two main points: the
first one is the forecast of a new legal procedure to investigate the allegations of the whistle-
blowers for a suspicious corruption act and the second point is to sanction any action against the
97 Law n. 10173 (On the Protection of Collaborators of Justice and Witnesses) 2009 [Për mbrojtjen e dëshmitarëve
dhe bashkëpunëtorëve të Drejtësisë]aw N. 10173 (On the Protection of Collaborators of Justice and Witnesses)
2009
98 Arjan Dyrmishi, Elira Hroni, Egest Gjokutaj, “Whistle-blowers protection in Albania: An assessment of the Legislation and
Practice”, Institute for Democracy and Mediation [2013] pg.9
99 Draft law (Protection of Whistle-blowers) 2015 [Projekt ligj për Mbrojtjen e Sinjalizuesve]
82Netherlands Embassy in Albania, ‘Presentation of the Whistleblowing Draft’,
<http://albania.nlembassy.org/news/2016/02/whistleblowing-draft-law-presentation.html> accessed on 9 March
2016
101 Article 9. Draft law (Protection of Whistle-blowers)2015 [Projekt ligj për Mbrojtjen e Sinjalizuesve]

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35
whistle-blowers in any retaliation directly or indirectly by the company.102
The existing provisions are ambiguous and this draft law for the protection of whistle-blowers
will guarantee the efficient functioning when denouncing a malpractice and will encourage
whistle-blowers to come forward and report malpractices.
12. Conclusions
In conclusion of this research, it can be assumed that, in accordance with Article 10 of the
European Convention on Human Rights, and the principles established therein, the domestic
law and practice in Albania should, and need to, provide further explicit and clear protection of
the right of journalists not to disclose their sources of information. In light of this commitment,
the Legal Reform of media in Albania, imposed by the fundamental political changes, from the
totalitarian regime to democracy, started with the Press Law on 1993, the first democratic law, as
the initial step towards a media system similar to the Western European countries. Since then,
several measures on national level have been taken to establish and adjust the media legislation
system. Nevertheless, as it is noted in this research, existing Albanian legislation does not
provide a specific law (lex specialis) on protecting this right.
There is not a unified piece of legislation regarding the regulation of media in general. There are
totally different regulation regimes for print and electronic media. Print media operates in an
almost total lack of legal regulation on press. Instead, it is subject only to regulation by
competition and commercial laws. On the other hand, the legal framework on the broadcasting
activity in the country is laid down firstly by the Law on Public and Private Radio and Television
in the Republic of Albania, adopted in 1997, and then by the Law on Audiovisual Media,
adopted in 2013. This law provides only a general provision elaborating fundamental principles
of ‘audiovisual broadcasts’, mentioning among others the principle of maintaining the secrecy of
information sources.
On the other side, the only national law providing in the same provision (article 159) the right of
journalists to maintain professional secrecy and the respective limitation of this right, is the Code
of Criminal Procedure in the Republic of Albania.
With due regard to this provision, it is a positive step the fact that professional journalists, in
line with principles set out in the Recommendation No R (2000) 7, are protected from the
obligation to testify in a trial, in order to maintain their sources of information. What is
important to notice is that the court is the sole authority which has the exclusive competence to
decide whether this right shall be derogated or not. In our opinion, by giving this competence
only to the court, it is guaranteed the essence of the right and provided the appropriate legal
security for journalists.
102 Report on the draft law for the “Protection of Whistle-blowers”, para 3

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36
What might be problematic is the fact that in this provision is not provided any specific
alternative measure with the intention of protecting journalists right not to disclose source of
information, in order to be less intrusive to this right. It is completely at the discretion of the
court to decide on the issue of protecting the journalist’s professional secrecy, search for and
apply proportionate alternative measures. It is also not specified the so-called procedure of
verification, stated in paragraph 2 of this provision, in case the court suspects that the journalist's
claim to apply this protection has no grounds. In the light of this limitation, there is no a clear
statement in which grounds would be a hypothetical suspect by the court. Nevertheless, it is
widely acceptable the presumption that the court is the most effective authority to protect and
guarantee the right of journalists provided in the national legislation.
It is encouraging that Article 159 of Criminal Procedural Code provides that the revelation of the
source of information is the very last remedy applied by the court. It comes as a necessity only if
there is no other way to prove a criminal offence.
Another issue, is the fact that within the scope of Article 159, falls only the one named as
"professional journalist", without explaining what this term does mean. In this framework, there
is no legal definition of the term “journalist” in Albania beyond the description of the role and
tasks of ‘journalist’ provided by the Code of Ethics. In order to exclude any misinterpretation or
ambiguity, it would be relevant to modify and reword this provision by defining clearly the
terminology used therein. Nevertheless, we consider that in this situation the term "professional
journalist" should be interpreted by the court having regard to the case-law of the European
Court of Human Rights.103
From the above, in our view, we can conclude that sources of information of journalists are
protected, even though not clearly and in detail, but indirectly through the provisions of Criminal
Procedure Code and the Law of “Freedom of Information”.
With regard to the right to protect sources, national courts of Albania, during their judicial
reviews have not had cases referring the right to protect sources of information. In Albania there
is no any case law considering the right of non-disclosure of sources but different claims have
been brought before the court with regard to Freedom of Expression and the national Courts of
Albania have given various judicial decisions where you can see how national courts consider the
case law of the European Court of Human Rights and its standards.
Another important issue is the lack of efficient self-regulations mechanisms, which in a normal
situation could help media to keep its role as watchdog of governments in general.
In that context, although it is admitted that media self-regulation appears to be a solution to
103 Goodwin v the United Kingdom [1996] European Court of Human Rights

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