Court: Investigators were allowed to spy on journalists’ interviews in face mask scandal

The Public Prosecution Service (OM) was allowed to listen in on a confidential conversation that three journalists of De Correspondent had with Sywert van Lienden, Bernd Damme, and Camille van Gestel about their face mask case. The court in The Hague ruled this on Wednesday in a case that was initiated by De Correspondent.

The court considers that although the OM has infringed the right to source protection, this was justified "given the criminal interest.” Van Lienden and his business associates had been arrested shortly before this on suspicion of fraud, embezzlement, and money laundering, and the OM was still fully investigating these charges.

On March 25, 2022, journalists of De Correspondent held a seven-hour-long background conversation with the board members of the Stichting Hulptroepen Alliantie in order to make a reconstruction of the controversial face mask deal that the association made with the government. They heard a year and a half later that this conversation had been tapped.

De Correspondent thinks that this was illegal from the OM because they are supposed to protect their sources and wanted the judge to speak out on wiretapping practices like this.

The judge thinks that the OM should have notified the journalists about the wiretapping at an earlier stage. The tapped conversation was typed out by the OM and sent to the lawyers of the suspects in October 2023. The examining magistrate did not see this reported until February 2024.

According to the civil court, the State acted unlawfully by doing this. "The judicial review, therefore, only took place after the documents had already been used in the criminal case," said the judge.

The wiretapping operation was only aimed at the suspects connected to the investigation into fraud in the face mask case, the OM said. The journalists were not the intended targets.

Editor-in-Chief Rob Wijnberg from De Correspondent said it was a positive signal “that the court acknowledged that this was a violation” of the right journalists have to protect their sources. However, he also said he was disappointed that the court ruled the investigators’ tactics were justified.

De Correspondent is still considering further steps. Wijnberg is pleased with the “rap on the knuckles” that the Public Prosecution Service is receiving, including the part of the judgment that stated the journalists should have been informed at an earlier date. He ultimately wants to share advice with fellow journalists who want to have confidential conversations with individuals who may be suspects in a criminal investigation.

“Do this in your own editorial office, where the Public Prosecution Service is not allowed to wiretap you,” Wijnberg said.

Dutch journalists association NVJ also said they were let down by the district court’s ruling in the case. “The court is giving its approval that the Public Prosecution Service has in fact used journalists to gather information from suspects,” said the association’s leader, Thomas Bruning.

“That is distasteful, and damages the credibility of journalists in their role towards sources. The legally established right to source protection is being undermined by this,” Bruning said of the ruling.

The Public Prosecution Service was satisfied with the verdict. “It is very good that the court has issued a ruling and provided clarity,” said a spokesperson. “We will further study the verdict.”