International instruments on the protection of journalists’ sources

Journalists' Source Privilege map via Privacy International World Press Freedom Day is an appropriate day on which to consider the protection of journalists’ sources on the international plane. It is a protection that is embodied in many international instruments. For example, the Organisation for Security and Co-operation in Europe (OSCE) has always had media freedom at the heart of its operations. Hence, in the Concluding Document of its 1986 Vienna meeting (pdf), principle 40 of the principles relating to Co-operation in Humanitarian and Other Fields commits the member states to

… ensure that, in pursuing this activity, journalists, including those representing media from other participating States, are free to seek access to and maintain contacts with public and private sources of information and that their need for professional confidentiality is respected.

Similarly, principle 3(d) of the Council of Europe Resolution on Journalistic Freedoms and Human Rights (adopted at the 4th European Ministerial Conference on Mass Media Policy, Prague, 7-8 December 1994) calls for

the protection of the confidentiality of the sources used by journalists.

More recently, the Committee of Ministers of the Council of Europe adopted Recommendation No. R (2000) 7 on the right of journalists not to disclose their sources of information (adopted 8 March 2000). Principle 1 of the Recommendation provides:

Principle 1 (Right of non-disclosure of journalists)

Domestic law and practice in member states should provide for explicit and clear protection of the right of journalists not to disclose information identifying a source in accordance with Article 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter: the Convention) and the principles established herein, which are to be considered as minimum standards for the respect of this right.

And this Recommendation was relied upon by the Constitutional Court of the Republic of Lithuania on the question of the compatibility of such a privilege with constitutional principles of administration of justice by the courts. Most recently, the Parliamentary Assembly of the Council of Europe adopted Resolution 1636 (2008) on Indicators for media in a democracy (adopted 3 October 2008 on foot of this report; see also the Assembly’s Recommendation 1848 (2008)); paragraph 8.8 provides unambiguously:

the confidentiality of journalists’ sources of information must be respected.

Similarly, on the other side of the European house, the EU Parliament adopted a Resolution on confidentiality for journalists’ sources (OJ C 044/34, 14 February 1994).

Nor is the protection of journalists’ sources confined to European organisations. In October 2000, the Organization of American States (OAS) adopted the Declaration of Principles on Freedom of Expression (also here); principle 8 provides:

Every social communicator has the right to keep his/her source of information, notes, personal and professional archives confidential.

Similarly, in October 2002, the African Commission on Human and Peoples’ Rights (ACHPR) adopted the Declaration of Principles on Freedom of Expression in Africa; principle 15 provides:

XV Protection of Sources and other journalistic material

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 clear, therefore, that there is a strong international consensus in favour of the protection of journalists’ sources. Moreover, many countries take these international obligations seriously. Hence, reports by Privacy International, considering the situation in OSCE countries (May 2007, pdf) and globally (December 2007, pdf), demonstrate that many countries do indeed recognise the protection of journalists’ sources (in their map, above left, red is good); and there is more detail about some of the countries in Article XIX‘s amicus curiae submission (pdf) in the ECHR case of Goodwin v UK Application no 17488/90, [1996] ECHR 16 (27 March 1996) and their Briefing Paper on Protection of Journalists’ Sources (1998) (pdf).

On World Press Freedom Day, therefore, it would appear that the protection of journalists’ sources internationally is in reasonably good health. Whether that is true of Ireland will be decided by the Supreme Court in its forthcoming decision in the appeal in Mahon v Keena [2007] IEHC 348 (23 October 2007).


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