Protection of confidential
sources
Training workshop on media and
freedom of expression law
Good journalism usually entails the clear identification of
sources.
But sometimes – often in the most important stories – it
will be necessary to protect the identity of a confidential
source.
This is usually regarded as a basic ethical principle of
journalism. But what does the law have to say about it?
The landmark international case is Goodwin V.
United Kingdom in the ECtHR. Goodwin was a
journalist who refused to reveal his source and
was fined for contempt of court.
This is what the Strasbourg Court said:
“Protection of journalistic sources is one of the basic conditions for
press freedom.... Without such protection, sources may be deterred
from assisting the press in informing the public on matters of public
interest. As a result the vital public-watchdog role of the press may be
undermined and the ability of the press to provide accurate and
reliable information may be adversely affected. 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.”
Does this only apply to
journalists?
In the modern age, can other “social communicators”
invoke the protection of sources?
This is not a special right enjoyed by journalists – it is all
about the protection of a source or whistle-blower.
Hence:
“Every social communicator has the right to keep his/her
source of information, notes, personal and professional
archives confidential.” (Inter-American Commission of Human
Rights)
In a case in Singapore, a blogger successfully invoked the
principle of protection of sources:
“Whistle blowing and the reporting of corrupt activities by
credible parties… should not be unnecessarily deterred by
the courts, as such activities, given their surreptitious nature,
are usually very difficult to detect. In fact, it should be
reiterated that there is a compelling public interest
consideration ever present in Singapore to encourage whistle
blowing against corruption….” (Singapore Court of Appeal,
Dorsey v. World Sport Group)
Question for discussion
What if it is in the journalist’s interest to reveal
the source (for example if she is being sued for
defamation and needs to prove the truth of an
allegation)?
Should she reveal the source?
Should the court compel her to?
Are there exceptions to this
principle?
Yes, inevitably. But only in the following circumstances:
• The identity of the source is necessary for the investigation
or prosecution of a serious crime, or the defence of a
person accused of a criminal offence;
• The information or similar information leading to the same
result cannot be obtained elsewhere;
• The public interest in disclosure outweighs the harm to the
freedom of expression; and
• Disclosure has been ordered by a court, after a full
hearing.
(Declaration of Principles on Freedom of Expression in Africa)
Is there a journalistic privilege
not to be compelled to testify?
The Appeals Chamber of the International Criminal
Tribunal for the former Yugoslavia struck down a
subpoena for a war correspondent as this would make
their job more dangerous.
The Court devised a two-part test to reach this
conclusion:
• Did the journalist have information of direct value to
the case?
• Was there any alternative means of obtaining the
information?
(Prosecutor v. Radoslav Brdjanin & Momir Talic)
Hypothetical case for
discussion
You are a judge. The police have applied to you for an order to
seize unbroadcasted television footage of recent civil
disturbances. There are a number of criminal cases arising out
of the disturbances and the police believe that there may be
evidence in the footage that can be used to build their cases.
The television company argues that surrendering the footage
will compromise its future ability to cover public events,
especially where violence takes place or is threatened.
What is your decision?