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?