The so-called Source Protection Act received a lot of media attention in 2010. The newspapers expressed severe opposition, citing possible conflict with human rights’ norms (among others the excessive limitation of freedom of speech) as their reason.
In the process of deciding whether to proclaim the so-called Source Protection Act the conformity with various fundamental rights recognised in the Constitution of Republic of Estonia were analysed, above all the journalistic freedom (§ 45 of the Constitution), duty to protect persons’ honour and good name (§ 17 of the Constitution), right to enterprise and property (§-s 31 and 32 of the Constitution) and right to compensation for moral damage (§ 25 of the Constitutions). In addition, principles were observed that stem from Article 10 of European Convention for the Protection of Human Rights and Fundamental Freedoms and that are in accordance with practice of the European Court of Human Rights and Council of Europe’s Recommendation (2000) 7. Acts of several other European Union Member States regarding protection of journalistic sources and compensation for moral damage were analyzed. The rules for allocating jurisdiction in cases of damages against media corporations in European Union were also consulted.
Provisions regarding compensation for moral damages
The new subsections 5 and 6 of § 134 of Law of Obligations Act do not require the court to change its practice regarding determining the fair compensation for moral damages.
Subsection 5 imposes upon the court the duty to consider the severity and extent of the offence as well as the offender’s behaviour and attitude towards the injured party after the offence has taken place. Subsection 6 does not place any obligations on the court. The court does not have the duty (even after the addition of the new subsections) to influence the offender to desist from causing further damage by determining the amount of compensation for defamation of honour and good name that would have that effect. Subsections 5 and 6 describe the considerations in place at the moment to determine the compensation for moral damages.
§ 25 of the Constitution simply states: “Everyone has the right to compensation for moral and material damage caused by the unlawful action of any person”. The size of the compensation for moral damage is determined by the court, considering all circumstances and according to its inner convictions. There are no objective criteria in place. The new provisions do not change that principle. All rules and principles regarding compensation for damages in the Law of Obligations Act will remain in force after the amendments come into effect, whereas the prerequisite for compensating for damages is the fact that the damage has actually occurred; the burden of proof lies with the injured party; the compensation for damages may not serve the purpose of enriching the injured party; only the damage that occurred unlawfully is to be compensated for; there has to be a causal link between the damage and the unlawful act of the person who did it. This falls into the sphere of private law, a relationship between private persons. The case for damages is not submitted to the court on the initiative of the state, but the person who has suffered the damage who decides to turn to court by filing an action, paying the fee for filing a court action and preparing to take on the rest of the court fees. That is also the case according to the Law of Obligations Act in force at the moment.
The current Law of Obligations Act does not state the maximum potential amount of compensation for damages in case of defamation of honour; the fair amount is to be determined by the court according to its discretion. Estonian court practice has seen a wide range of amounts of compensations for damages from the press, amounting to several hundred thousand kroons in some cases. Considering the court practice so far, as well as the acts in force, anybody who may cause defamation of honour or good name by its actions has to acknowledge the possibility of it resulting in compensation for damages.
According to § 45 of the Constitution the freedom of expression (including the freedom of press) may be restricted to protect public order, morals, and the rights and freedoms, health, honour and good name of others. Paragraphs 17, 19 and 25 of the Constitution place it upon the legislative body to prescribe means for protection of honour and good name, and to ensure the compensation for moral damages for everyone. Therefore it can be concluded that the current Law of Obligations Act as well as the proposed amendments are in the spirit of the constitutional objectives. Paragraph 11 of the Constitution states that the limitations may not be excessively strict and the limitation has to be proportional to the constitutional objective. Considering the fact that defamation is punishable pursuant to criminal procedure in addition to being awarded damages by way of civil proceedings in many other states based on rule of law, the claim that the provisions in force in Estonia or the proposed provisions would constitute excessive limitations and prove detrimental to the nature of journalism, would not be a feasible one.
As a conclusion, the proposed amendments do not force the court to change its practice in determining compensation for moral damages. Public law measures of force or punishment for defamation of honour will not be established. The draft regulation is flexible and allows the court to reach a fair solution by weighing opposing rights, and the person causing the damage has the opportunity to influence the amount of the compensation by his or her behaviour. However, it has to be noted that the Government of Estonia did ignore the good custom of legislative drafting – the press were not included in appraisal of the need for the draft or in the appraisal of the amendments being made.
The general knowledge of law in Estonia is in a relatively poor state; the earlier assumption of the press is also erroneous (that the acts regarding data processing, criminal proceedings and compensations for damages do not apply to journalists or publications). Especially because of this erroneous assumption it would be extremely useful to include the press in the common discussion.
Provisions regarding source protection
According to the acts in force at the moment the persons processing data for journalistic purpose did not had the right to refuse giving statements in criminal proceedings prior to passing of the so-called Source Protection Act. Source protection was regulated only in broadcasting cases. This is in contravention of Council of Europe’s Recommendation (2000) 7. Therefore, it is necessary to state the protection of journalistic sources in an act of law in order to secure the freedom of press. The question – what are the circumstances that justify the breach of the protection of journalistic sources? – is a complicated one. The compromise found in the course of the draft proceedings seems to be consistent with the aforementioned recommendations: disclosing the source can be required only in case of serious crimes (minimum category of punishment 8 years); if other means of gathering evidence are impossible or difficult; if public interest for statements outweighs the interest of concealing the source provided the court grants the permission. It cannot be precluded, similarly to the other states, that there is a possibility of dispute arising out of implementation of the provisions regarding protection of journalistic sources in practice. That in itself is not sufficient to consider the Code of Criminal Procedure to be in conflict with the Constitution.
The President of the Republic of Estonia considered the act to be in accordance with the Constitution and decided to proclaim it. The act entered into force on the January 1st, 2011.
The controversy and false information that arose from processing the draft is deplorable. The head of state has repeatedly drawn attention to the fact that the necessity, content and the predictable effect of all acts should be discussed with the people whose actions the act influences and that best experts of the relevant field be given sufficient time and included in the drafting process. That was not the case in this instance.
Compared to other states (European Union Member States included) the freedom of press in Estonia will remain ample and that is a welcome sign.
 The official title is “Ringhäälinguseaduse, kriminaalmenetluse seadustiku, tsiviilkohtumenetluse seadustiku ja võlaõigusseaduse muutmise seadus” [Act amending the Broadcasting Act, Code of Criminal Procedure, Code of Civil Procedure and the Law of Obligations Act] RT [State Gazette] I 2010… RT I, 21.12.2010, 1.
 The Constitution of the Republic of Estonia. RT 1992, 26, 349 … RT I 2003, 64, 429.
 European Convention for the Protection of Human Rights and Fundamental Freedoms. Adopted in Rome 4.11.1950. Estonia signed 14.05.1993. Estonia ratified 16.04.1996.
 RT I 2001, 81, 487 … RT I, 4.02.2011, 2.