Protection of Journalistic Sources
Module 10: Violence Against Journalists
Protection of confidential journalistic sources is a core component of media ethics. Normally, journalists openly identify their sources but, if doing so would breach a promise made to the source, journalists will protect the source’s confidentiality. The ability of a journalist to protect confidential sources protects the willingness of sources to share information with journalists in the first place, and thereby protects the rights of society as a whole to access information about sensitive issues. Accordingly, the Human Rights Committee has said: “States parties should recognise and respect that element of the right of freedom of expression that embraces the limited journalistic privilege not o disclose information sources.”(1) Maintaining confidentiality may also be crucial to journalists’ own safety; journalists may be targeted if they are seen as potential witnesses rather than independent or confidential observers, for example.(2)
Traditionally, concerns over protecting journalistic sources primarily arose in the context of court proceedings when courts sought to compel journalists to reveal their confidential sources. Clear rules should be set out in law which only allow source disclosure to be ordered in exceptional circumstances. For example, in a landmark European Court of Human Rights Case, Goodwin v. United Kingdom, the Court affirmed that journalists should only be compelled to reveal a source in “exceptional circumstances where vital public or individual interests were at stake”.(3) Protecting journalistic sources is “one of the basic conditions for press freedom”, so in order to meet the requirement of necessity under the three-part test, there must be an “overriding requirement in the public interest” justifying disclosure.(4)
Protection of Journalistic Sources in the Asia Region
In Malaysia, in 2013, a major High Court ruling affirmed the importance journalistic protection of confidential sources. In Datuk Seri Tiong King Sing v. Datuk Seri Ong Tee Keat, the Court considered first whether the disclosure of sources was relevant and necessary, and found that in the case it was. However, because the harm caused by requiring disclosure would outweigh the benefits, the Court decided it was in the public interest to decline to mandate disclosure.(5)
Similarly, Singapore’s Court of Appeals, in Dorsey James Michael v. World Sport Group Pte Ltd, considered whether to allow an interrogation in a civil suit which would have compelled a journalist who blogged about a football corruption scandal to reveal his sources. The Court emphasised that “necessity” is “the main cornerstone” in such cases; the party requesting the interrogation must show that they need to identify the sources for the viability of their case, rather than that they are merely on a fishing expedition.(6) Where revealing sources is involved, the Court noted that the party trying to learn the source identity must show a “real interest” in suing the source whose identity is requested. Such an interest must be weighed against the public interest in retaining confidentiality. In balancing the “real interest” against the “public interest”, reference should be had to factors such as whether granting disclosure would be a “necessary and proportionate response”, how confidential the information was, and whether the information could be obtained from another source.(7)
In this case, World Sport Group had not demonstrated that it was necessary for them to obtain the identity of the sources. Further, the Court gave an extended discussion of the public interest in combatting corruption, suggesting that where there is high public interest in the information disclosed by confidential sources, such as in accountability for corruption, source confidentiality should be maintained.(8)
Outside the context of court proceedings, source confidentiality concerns also arise during searches and seizures of journalists’ homes, workplaces and property. The importance of protecting source confidentiality imposes a higher burden on police or investigatory authorities when they search media premises or journalist residences.(9) The European Court of Human Rights, for example, has said that prior to seizure of journalistic material or raids of media premises, a judge or independent body must evaluate the risk to source confidentiality against the public interest in the investigation, and consider whether a less intrusive search could meet the investigatory needs.(10)
However, in the modern era, digital communications have dramatically changed the manner in which both State and non-state actors can attempt to access confidential journalistic material or sources. Expanded legal grounds for surveillance combined with the technical tools to do so may create a “work around” for journalistic privilege, enabling governments to access sources outside of a court process and without the knowledge of journalists.(11)
International human rights standards clearly condemn such practices. As stated in the Declaration of Principles on Freedom of Expression and Access to Information in Africa, for example, “States shall not circumvent the protection of confidential sources of information or journalistic material through the conduct of communication surveillance except where such surveillance is ordered by an impartial and independent court and is subject to appropriate safeguards.”(12)
Similarly, in their 2018 Joint Declaration, the special international mandates on freedom of expression noted: “States should put in place effective practical and enforceable measures to avoid identifying confidential journalistic sources indirectly using digital means and should avoid taking actions that result in media outlets or journalists being used as an indirect means to pursue criminal investigations.”(13)
The European Court of Human Rights, in Big Brother Watch v UK, found that a surveillance scheme violated the right to freedom of expression where it did not offer sufficient protection for journalistic source confidentiality. United Kingdom law had safeguards for source confidentiality when authorities specifically sought authorization to obtain data identifying a specific source. However, the broader bulk surveillance regime, including general requests for journalist communications data, did not incorporate any such safeguards.(14)This meant, for example, that analysts could target journalists’ communications for examination without any judicial order or application of the criteria set out in Goodwin, discussed above.(15)
Another key impact of the digital era is the changing nature of media work. A wide range of actors now engage in journalistic-type activities. For this reason, many international standards discussing source confidentiality apply the journalistic privilege broadly, such as to any “social communicator”(16) or “person regularly engaged in the collection and dissemination of information to the public”.(17) National legal systems are increasingly adapting to recognise this reality. For example, it is noteworthy that in the Singapore Dorsey case described above, the journalist in question was a blogger, not a formal journalist in the traditional sense.