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