Journalists’ source privilege is in the air. In the US, the House of Representatives has recently passed a (not particularly readable) Bill recognising a journalists’ source privilege (the Free Flow of Information Act of 2009), and it has been introduced into the Senate. In the UK, a prosecution of a local newspaper journalist and the police source who “leaked” stories to her was recently dismissed (indeed, a similar case against a member of parliament will also not proceed, though another is still pending).

On a judicial level, the Trial Chamber of the Special Court for Sierra Leone (SCCL) (pdf) (noted on the CPJ blog), relying on the earlier decision of the Appeals Chamber of the International Criminal Tribunal for the Former Yugoslavia (ICTY) in Prosecutor v Bradjanin and Talic (11 December 2002), held that a Liberian journalist did not have to divulge the names of those who facilitated his access to a war zone. In Sanoma Uitgevers BV v the Netherlands Application no 38224/03 (31 March 2009) (noted in my previous post), building on its seminal and hugely influential decision in Goodwin v UK Application no 17488/90, [1996] ECHR 16 (27 March 1996), the European Court of Human Rights (ECHR) explored the limits of such a privilege.

Moreover, in Ireland and Canada, cases are pending in both countries’ Supreme Courts on the question of the nature and extent of journalists’ source privilege. So, it’s a good time to try to clarify some of the important issues which arise. In particular, a key question, often overlooked, is whether the privilege inheres in the journalist or the source. For my own part, I would say that privileges inhere in both the journalist and the source, that they are two different privileges, and that they arise and are lost in very different ways.

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In my previous post, I outlined some of the international instruments which provide for the protection of journalists’ sources. The leading court decision on the issue is the judgment of the European Court of Human Rights (ECHR) in the seminal and hugely influential Goodwin v UK Application no 17488/90, [1996] ECHR 16 (27 March 1996). And in Sanoma Uitgevers BV v the Netherlands Application no 38224/03 (31 March 2009), the Court reaffirmed Goodwin but set out its limits.

Goodwin turned on the interpretation of Section 10 of the Contempt of Court Act, 1981, which provides:

No court may require a person to disclose, nor is any person guilty of contempt of court for refusing to disclose, the source of information contained in a publication for which he is responsible, unless it be established to the satisfaction of the court that disclosure is necessary in the interests of justice or national security or for the prevention of disorder or crime.

In X Ltd v Morgan-Grampian (Publishers) Ltd [1991] 1 AC 1 (HL), the House of Lords held that it was “in the interests of justice” to order a trainee journalist to disclose the identity of a source. However, in Goodwin the ECHR held that this infringed the journalists’ right to freedom of expression in Article 10 of the European Convention on Human Rights. Read the rest of this entry »

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.

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Today is World Press Freedom Day. According to Koïchiro Matsuura, Director General of UNESCO [with added links]:

Every year, World Press Freedom Day provides an opportunity to affirm the importance of freedom of expression and press freedom – a fundamental human right enshrined in Article 19 of the Universal Declaration of Human Rights. On World Press Freedom Day 2009 UNESCO is highlighting the potential of the media to foster dialogue, mutual understanding and reconciliation …

The World Association of Newspapers has an excellent website for the day, on the theme of Journalists in the Firing Line:

As they investigate sensitive issues, unveil disturbing truths and question policies, journalists find themselves in the firing line of those directly or indirectly exposed by their reports. … On World Press Freedom Day, the World Association of Newspapers will present the story of many journalists whose work upsets and can sometimes undo the powerful. What do they report on, how and at what price? …

The position worldwide is disquieting. First Amendment Law Prof reproduces some sobering statisticss from the annual Freedom House report (pdf | html, from which the map of press freedom at the start of this paragraph is taken):

* 2009 marked the seventh straight year in declining press freedom worldwide;
* over 80% of the world’s inhabitants live in a country where the press is either “not free” or only “partly free” to operate;
* Israel, Italy and Hong Kong, fell to “partly free” because of increased threats to media independence and diversity;
* the U.S. fell one spot to #18 for the same reason;
* Iraq, at #148, is still “not free.”

According to the tables (pdf), the free-est is Iceland, and the least free is North Korea; Ireland is equal fourteenth worldwide, and twelfth in Western Europe. But this is no reason for complacency. On the Index on Censorship blog yesterday, Michael Foley wrote:

It might be fanciful, but what better way to celebrate World Press Freedom Day than for governments to acknowledge the fundamental and central role journalism plays in democracy and in creating a democractic culture. Would it not be good if on this day governments said they would desist from announcing legislation that slowly chips away at press freedom?

In Ireland we are about to have a blasphemy law and privacy legislation introduced, unless, in the unlikely event, there is a successful campaign against it. We have seen our freedom of information legislation made less effective and editors have been harrassed in order to have sources revealed. The press has waited 18 years for libel reform, since a Law Reform Commission recommended changes in 1991. …