The Pandora papers: Legal considerations on freedom of information


An investigation has revealed allegedly fraudulent tax schemes by many politicians, artists and celebrities

The Pandora papers: Legal considerations on freedom of information
October 5, 2021

As it already happened with the infamous Panama Papers, WikiLeaksand FootballLeaks, an investigation led by the International Consortium of Investigative Journalists (ICIJ or the Consortium) has revealed allegedly fraudulent tax schemes by many politicians, artists and celebrities in the show business, sports and finance worlds using offshore companies in Panama.

According to the news, this information results from complex investigations and inquiries by the over 600 journalists that make up the Consortium. Apparently, the information comes from up to 14 different law firms that have allegedly advised on setting up these fraudulent tax schemes in various countries.

However, there is little or no discussion of how the journalists obtained the information from these 14 law firms. And everyone knows that, under article 20 of the Spanish Constitution, journalists have the right not to reveal their sources, and our legal system is committed to protecting this right. Recurrent Constitutional Court case law (e.g., Constitutional Court Judgment in case 199/1999) shields this right, giving it a prominent role in guaranteeing the fundamental right to freedom of information.

Obviously, the attorney-client relationship is governed by deep trust and attorney-client privilege, requiring lawyers not to disclose in any way any information they may become aware of as a result of their professional relationship with their clients. There are very few exceptions to this almost absolute duty of confidentiality because it also stems from the Constitution and the fundamental right to effective legal protection.

The right to the secrecy of communications, as a dimension of the right to privacy, also protects any personal communications, so any wiretapping or intercepting activities are only allowed exceptionally, since they would affect a fundamental right.

In this context, we must ask ourselves how and through what means such sensitive information has fallen in the hands of journalists disclosing tax and financial data of prominent personalities, knowing how much of a commotion this news would cause.

Considering the precedents discussed above, we should not rule out that these leaks come from a hacker, who could have gained unauthorized access to the law firms’ confidential files (who knows why or for what purpose) to provide journalists with such juicy information. If that is confirmed, the spotlight would be on the breach to secrecy of communications.

If this were the case, would the media leading this investigation really be allowed to publish news that can undermine third party rights? There is no doubt that the published information is newsworthy and accurate according to the standards governing the right to freedom of information. However, it is questionable that this right should always prevail even when the information has been obtained through a criminal offense.

See Constitutional Court Order 129/2009, of May 4: “Courts should find a criminal offense for disclosing information knowingly obtained in violation of the fundamental right to the secrecy of communications (especially protected by the Constitution). The alleged offenders may not claim that they were lawfully exercising their right to freedom of information. They can neither argue that courts should strike a fair balance between the alleged clash of rights.”

So, regardless of any evidence-related issues in proving that the information has been unlawfully obtained, and that the medium or journalist were aware of it, that there are many implications to consider before publishing potentially unlawful content. Keep in mind that the right to inform is not unlimited, and that the consequences arising from the wrongful exercise of this right should be considered.

These publications are becoming more common, and it will be essential to keep this interpretation in mind when they appear. The above balance between freedom of information and the rights to privacy and secrecy of communications will be essential to ensure that disclosing illegal behaviors (which is certainly desirable) does not entail disregarding other equally acknowledged rights.

Author: Jean-Yves Teindas

October 5, 2021