Source Protection and the Protection of Journalistic Materials
Module 4: Privacy and Security Online
The protection of journalistic sources is central to the ability of journalists to properly investigate stories, as well as for the protection of individuals and whistleblowers who provide information to them.(1) Compelling the disclosure of sources has a chilling effect on freedom of speech and media freedom, in addition to hindering the free flow of information.(2)
In this regard, General Comment No. 34 to the ICCPR provides that states parties “should recognise and respect that element of the right of freedom of expression that embraces the limited journalistic privilege not to disclose sources.” Furthermore, principle XV of the Declaration of Principles on Freedom of Expression in Africa deals with the issue of protection of sources by providing as follows:
“Media practitioners shall not be required to reveal confidential sources of information or to disclose other material held for journalistic purposes except in accordance with the following principles:
– 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 freedom of expression; and
– disclosure has been ordered by a court, after a full hearing.”
It is important to note that the protection of sources has acquired new significance in the digital age in the context of its intersection with the right to privacy of communications.(3) The technological advances in the world today has made surveillance, often justified as necessary for the protection of national security, a problem for the protection of sources.(4) The Secretary-General of the UN has noted surveillance activities can have a chilling effect on media freedom and renders it more difficult to communicate with sources and share and develop ideas, which may lead to self-censorship.(5) Similarly, the UNGA – in its resolution on the safety of journalists – emphasised that journalists in the digital age are particularly vulnerable to becoming targets of unlawful or arbitrary surveillance and/or interception of communications in violation of their rights to privacy and freedom of expression.(6) In this regard, it goes on to note that encryption and anonymity tools have become vital to journalists to secure their communications and protect the confidentiality of their sources.
The right to source protection in South Africa
In Bosasa Operations (Pty) Ltd v Basson and Another, the South Africa High Court established a general proposition that journalists are not required to reveal their sources, subject to certain exceptions. The court stated in this regard that: “If indeed freedom of the press is fundamental and sine qua non for democracy, it is essential that in carrying out this public duty for the public good, the identity of their sources should not be revealed, particularly, when the information so revealed, would not have been publicly known. This essential and critical role of the media, which is more pronounced in our nascent democracy, founded on openness, where corruption has become cancerous, needs to be fostered rather than denuded.”(7)
Surveillance activities carried out against journalists have the risk of fundamentally undermining the source protection to which journalists are otherwise entitled. According to principle 9 of the Global Principles on the Protection of Freedom of Expression and Privacy – published by ARTICLE 19 – the following principles apply to the protection of sources:
“9.1. The right to freedom of expression implies that everyone who obtains information from confidential sources with a view to exercising a journalistic activity has, subject to Principles 9.2 (a) and (b), a duty not to disclose the identity of their confidential sources and a right not to be required to do so.
9.2. States should provide for the protection of the confidentiality of sources in their legislation and ensure that:
(a) Any restriction on the right to protection of sources complies with the three-part test under international human rights law…;
(b) The confidentiality of sources should only be lifted in exceptional circumstances and only by a court order, which complies with the requirements of a legitimate aim, necessity, and proportionality. The same protections should apply to access to journalistic material;
(c) The right not to disclose the identity of sources and the protection of journalistic material requires that the privacy and security of the communications of anyone engaged in journalistic activity, including access to their communications data and metadata, must be protected. Circumventions, such as secret surveillance or analysis of communications data not authorised by judicial authorities according to clear and narrow legal rules, must not be used to undermine source confidentiality; and
(d) Any court order under 9.2 (b) and (c) must only be granted after a fair hearing where sufficient notice has been given to the journalist in question, except in genuine emergencies.”
Further to this, as set out by the United Nations Educational, Scientific and Cultural Organization (UNESCO), a robust and comprehensive source protection framework would encompass the need to:(8)
- Recognise the value to the public interest of source protection, with its legal foundation in the right to freedom of expression (including press freedom), and to privacy. These protections should also be embedded within a country’s constitution and/or national law.
- Recognise that source protection should extend to all acts of journalism and across all platforms, services and mediums (of data storage and publication), and that it includes digital data and meta-data.
- Recognise that source protection does not entail registration or licensing of practitioners of journalism.
- Recognise the potential detrimental impact on public interest journalism, and on society, of source-related information being caught up in bulk data recording, tracking, storage and collection.
- Affirm that State and corporate actors (including third-party intermediaries), who capture journalistic digital data must treat it confidentially (also acknowledging the desirability of the storage and use of such data being consistent with the general right to privacy).
- Shield acts of journalism from targeted surveillance, data retention and handover of material connected to confidential sources.
- Define exceptions to all the above very narrowly, so as to preserve the principle of source protection as the effective norm and standard.
- Define exceptions as needing to conform to a provision of “necessity” and “proportionality” — in other words, when no alternative to disclosure is possible, when there is a greater public interest in disclosure than in protection, and when the terms and extent of disclosure still preserve confidentiality as much as possible.
- Define a transparent and independent judicial process with appeal potential for authorised exceptions, and ensure that law-enforcement agents and judicial actors are educated about the principles involved.
- Criminalise arbitrary, unauthorised and wilful violations of confidentiality of sources by third-party actors.
- Recognise that source protection laws can be strengthened by complementary whistleblower legislation.
UNESCO has further noted that there is a particular gender dimension that arises in respect of source protection in the digital age. Women journalists face additional risks in the course of their work – both on- and offline: in the physical realm, these risks include sexual harassment, physical assault and rape, which may limit their physical mobility; and the digital sphere, acts of harassment and threats of violence are rampant.(9) Similarly, female sources face increased risks when acting as whistleblowers or confidential informants.(10) As such, women journalists need to be able to rely on secure, non-physical forms of communications with their sources, in particular secure digital communications, to be able to engage with their sources.(11)
Digital safety and security are paramount for both female journalists and sources
“Women journalists need to be able to rely on secure digital communications to ensure that they are not at increased risk in conflict zones, or when working on dangerous stories, such as those about corruption and crime. The ability to covertly intercept and analyse journalistic communications with sources increases the physical risk to both women journalists and their sources in such contexts. Encrypted communications and other defensive measures are therefore of great importance to ensure that their movements are not tracked and the identity of the source remains confidential.
The risks of exposure for confidential sources are magnified for female whistleblowers. Therefore, they need to be able to have access to secure digital communications methods to ensure that they are at minimum risk of detection and unmasking. They also need to have confidence in the ability to make secure contact with journalists to ensure that stories affecting women are told – secure digital communications can be an enabler for women’s participation in public interest journalism. They can also help to avoid magnifying the ‘chilling’ of investigative journalism dependent upon female confidential sources. Also needed are strong legal protections for confidentiality, which are applied in a gender-sensitive manner – especially in regard to judicial orders compelling disclosure.”