Police Questioning Journalists Covering Samherji: What’s Going On, And What Might Happen

As reported, four journalists will soon be questioned by North Iceland police over their coverage of fishing giant Samherji; specifically, their revelations of a group calling itself “the Samherji guerilla division” which sought to engage in damage control over the company’s revealed involvement in bribery and tax evasion related to their operations in Namibia.

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While Samherji ship captain Páll Steingrímsson has told reporters that his police filing is not aimed at the journalists in question, but rather on trying to find out who stole his phone–which apparently contained communications between the people in the so-called Samherji guerilla division–that these journalists are going to be questioned by the police to find out who is responsible for this theft is tantamount to trying to compel journalists to reveal their sources.

So what exactly is the legal precedent for this? Can the justice system force journalists to reveal their sources? How have similar cases played out in Iceland?

Right to protect sources internationally recognised

Clause 2 of Iceland’s Rules of Ethics in Journalism specifically states that “a journalist respects the necessary confidentiality of his sources”. There is in fact widespread international recognition that journalists have the right to protect their sources.

Sigríður Dögg Auðunsdóttir, the president of the Icelandic Journalists Union, pointed this out in a statement she released, saying in part, “Whenever files are considered a possible violation of the right to privacy, a journalist has to assess the documentation in the context of public interest and decide which bears more weight; the right to privacy or the public interest. When the public interest bears more weight, then there’s no question that this documentation should be used as the basis for reporting, no matter how it was obtained.”

Supreme Court barrister Gunnar Ingi Jóhannsson told RÚV that he believes it is highly unlikely that the reporters in question will face charges if they choose not to cooperate.

What does Icelandic law say?

This particular case would concern two articles of the General Penal Code: 228 and 229, both of which detail criminal penalties when someone “pries into letters, documents, diaries or other such materials containing information about another person’s private affairs, having gained access to the materials by trickery, opened letters, broken into a locked desk, cabinet, etc., or employed another similar method” and when someone “publicly discloses the private affairs of another person in the absence of sufficient reason to justify the action”.

In both of these articles, exceptions are made if “the conduct is justified by reference to the public or private interest”. The Icelandic Journalists Union argues that the revelations from these communications concerning Samherji are indeed in the public interest. But how has that played out in Icelandic courts in similar cases?

Media injunctions and a fallen minister

There have been incidents in the past wherein the Icelandic legal system tried in some way or form to compel journalists to reveal their sources, on the grounds that their reporting was based on confidential information that had either been stolen or leaked.

One famous example includes the infamous Tony Omos case of 2014, wherein a memo from the Ministry of the Interior was leaked to select members of the press concerning asylum seeker Tony Omos. This case would erupt into a major police investigation, ultimately resulting in the resignations of both then-Minister of the Interior Hanna Birna Kristjánsdóttir and one of her assistants, Gísli Freyr Valdórsson, who would confess to being the one who leaked the memo.

In the interim, legal attempts were made to compel the journalists who reported from the memo to give up their sources. These journalists did not, and faced no legal consequences for choosing to protect their source.

More recently, there was the case of Glintir HoldCo of 2018, which put considerably more pressure on Icelandic journalists. In October 2017, the District Commissioner of Reykjavík, on behalf of Glitnir HoldCo, issued an injunction against the magazine Stundin and media outlet Reykjavík Media, prohibiting them from reporting on the financial activity of Minister of Finance Bjarni Benediktsson and his family with Glitnir bank just before the economic collapse of Iceland in October 2008.

Glitnir HoldCo argued that these outlets were reporting from leaked documents, and the matter would end up going all the way to the Supreme Court, who ultimately ruled in the journalists’ favour on the grounds that “one aspect of this independence of the media is that they can receive such information in confidence without having to explain where or from whom it comes.”

What happens now?

Given Bjarni’s connection to the Glintir HoldCo case, it surprised many that he chose to comment on the Samherji case in a post made to Facebook yesterday, arguing that journalists should not consider themselves “too good to answer questions from the police”, closing by saying, “We all make the demand in this country that everyone is equal before the law. Might we also demand that everyone is equal before the media too?”

Bjarni’s point that everyone is equal before the law is correct, and Icelandic law–as well as past legal precedent and international agreements that Iceland is party to–give Icelandic journalists the right to protect their sources. How far the Samherji case goes still remains to be seen.