Media: L6 – The Protection of Journalistic Sources
Why do journalistic sources need protecting?
Policy reasons include:
- source might be unwilling to come forward if they knew that their identity was
not being protected
- source might risk losing their job or even being prosecute if their ID is revealed.
- Journalists are bound to keep the ID of sources secret – see e.g. Codes of
Conduct of IPSO, IMPRESS & NUJ
o General underlying theme that a good journalist would follow the conduct
of NUJ
- Protecting the anonymity of sources is in the general public interest
o Partly a question of trust but also the public want to hear about these
important public interest stories and if these people didn’t come forward,
then the public be in the dark
English Law:
Protects the ID of sources but it is not absolute protection.
English courts consider: **CCA s. 10 to see whether there are reasons for justifying
disclosure
CCA s10: “No court may require a person to disclose, nor is a person guilty of
contempt of court for refusing to disclose, the source of the info contained in a
publication for which he is responsible, unless it is established to the satisfaction of
the court that disclosure is necessary in the interests of justice of national security
or for the prevention of disorder or crime”
The Strasbourg Court:
The Approach of Strasbourg
- Strasbourg takes a slightly different line – the protection of sources is regarded
as pretty much sacrosanct – almost absolute protection.
- Art 10 Freedom of Expression is the key: (1) “Everyone has the right to freedom
of expression. The right shall include freedom to hold opinions and to receive
and impart information and ideas without interference by public authority and
regardless of frontiers…
Art 10 ECHR:
- (2)The exercise of these freedoms, since it carries with it duties and
responsibilities, may be subject to such formalities, conditions, or penalties as
are prescribed by law and are necessary in a democratic society, in the interests
of national security, territorial integrity or public safety, for the prevention of
disorder or crime for the protection of health or morals… for preventing the
disclosure of information received in confidence or for maintaining the
authority and impartiality of the judiciary.”
- Balancing exercise is between Art 10(1) and freedom of expression and 10(2).
- The key issue is whether a journalist can be ordered to disclose his sources for
one of the reasons listed in 10(2).
, The Council of Europe: their views
The Council of Europe (one of the ECHR institutions) in a fact sheet dated May
2017 on “The Protection of Journalistic Sources, A Cornerstone of the Freedom of
the Press” said: “According to the case law of the ECtHR, the right of journalists not to
disclose their sources is not a mere privilege to be granted or taken away depending on
the lawfulness or unlawfulness of their sources, but is part and parcel of the right to
information, to be treated with the utmost caution. Without an effective 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 reporting may be
adversely affected… Disclosure orders placed on journalists have a detrimental impact not
only on their sources whose identity may be revealed, but also on the newspaper against
which the order is directed, whose reputation may be negatively affected in the eyes of
future potential sources by the disclosure, and on the public who have an interest in
receiving information imparted through anonymous sources… Having regard to the
importance of the protection of journalistic sources for press freedom in a democratic
society and the potentially chilling effect that an order for disclosure of a source has on the
exercise of that freedom, such a measure cannot be compatible with Art 10 unless it is
justified by an overriding requirement in the public interest.”
- A privilege implies that you can mess around will it, but this right is a more than
a privilege.
- The court is saying that you balance 10(1) against 10(2) and look at other
requirements in the public interest such as policy reasons.
CCA S.10 – Headed “Sources of Information” – the English Cases:
As a general rule, if a person refuses to answer a question in court then they could
be held in contempt of court.
- Usually that does not apply when that person is a journalist if answering a
question would involve revealing the ID of a source.
The CCA provides that refusing to answer a question is not contempt if the
following applies: “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 protection of disorder or crime”
Disclosure can be required in 3 situations:
i. In interests of justice;
ii. National security or
iii. For the protection of disorder or crime.
s10 mirrors, to some extent, Art 10 ECHR
What happens if the journalist refuses to answer the question or to comply with
the order to disclose the source?
The Driving Force Behind the Enactment of the CCA – the influence of Strasbourg:
CCA was enacted as a result of the Sunday Times v UK case
ECtHR did not feel that English law did enough to protect Art 10.
Before s10, judges had the power to compel journalists to reveal their sources at
common law.
Why do journalistic sources need protecting?
Policy reasons include:
- source might be unwilling to come forward if they knew that their identity was
not being protected
- source might risk losing their job or even being prosecute if their ID is revealed.
- Journalists are bound to keep the ID of sources secret – see e.g. Codes of
Conduct of IPSO, IMPRESS & NUJ
o General underlying theme that a good journalist would follow the conduct
of NUJ
- Protecting the anonymity of sources is in the general public interest
o Partly a question of trust but also the public want to hear about these
important public interest stories and if these people didn’t come forward,
then the public be in the dark
English Law:
Protects the ID of sources but it is not absolute protection.
English courts consider: **CCA s. 10 to see whether there are reasons for justifying
disclosure
CCA s10: “No court may require a person to disclose, nor is a person guilty of
contempt of court for refusing to disclose, the source of the info contained in a
publication for which he is responsible, unless it is established to the satisfaction of
the court that disclosure is necessary in the interests of justice of national security
or for the prevention of disorder or crime”
The Strasbourg Court:
The Approach of Strasbourg
- Strasbourg takes a slightly different line – the protection of sources is regarded
as pretty much sacrosanct – almost absolute protection.
- Art 10 Freedom of Expression is the key: (1) “Everyone has the right to freedom
of expression. The right shall include freedom to hold opinions and to receive
and impart information and ideas without interference by public authority and
regardless of frontiers…
Art 10 ECHR:
- (2)The exercise of these freedoms, since it carries with it duties and
responsibilities, may be subject to such formalities, conditions, or penalties as
are prescribed by law and are necessary in a democratic society, in the interests
of national security, territorial integrity or public safety, for the prevention of
disorder or crime for the protection of health or morals… for preventing the
disclosure of information received in confidence or for maintaining the
authority and impartiality of the judiciary.”
- Balancing exercise is between Art 10(1) and freedom of expression and 10(2).
- The key issue is whether a journalist can be ordered to disclose his sources for
one of the reasons listed in 10(2).
, The Council of Europe: their views
The Council of Europe (one of the ECHR institutions) in a fact sheet dated May
2017 on “The Protection of Journalistic Sources, A Cornerstone of the Freedom of
the Press” said: “According to the case law of the ECtHR, the right of journalists not to
disclose their sources is not a mere privilege to be granted or taken away depending on
the lawfulness or unlawfulness of their sources, but is part and parcel of the right to
information, to be treated with the utmost caution. Without an effective 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 reporting may be
adversely affected… Disclosure orders placed on journalists have a detrimental impact not
only on their sources whose identity may be revealed, but also on the newspaper against
which the order is directed, whose reputation may be negatively affected in the eyes of
future potential sources by the disclosure, and on the public who have an interest in
receiving information imparted through anonymous sources… Having regard to the
importance of the protection of journalistic sources for press freedom in a democratic
society and the potentially chilling effect that an order for disclosure of a source has on the
exercise of that freedom, such a measure cannot be compatible with Art 10 unless it is
justified by an overriding requirement in the public interest.”
- A privilege implies that you can mess around will it, but this right is a more than
a privilege.
- The court is saying that you balance 10(1) against 10(2) and look at other
requirements in the public interest such as policy reasons.
CCA S.10 – Headed “Sources of Information” – the English Cases:
As a general rule, if a person refuses to answer a question in court then they could
be held in contempt of court.
- Usually that does not apply when that person is a journalist if answering a
question would involve revealing the ID of a source.
The CCA provides that refusing to answer a question is not contempt if the
following applies: “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 protection of disorder or crime”
Disclosure can be required in 3 situations:
i. In interests of justice;
ii. National security or
iii. For the protection of disorder or crime.
s10 mirrors, to some extent, Art 10 ECHR
What happens if the journalist refuses to answer the question or to comply with
the order to disclose the source?
The Driving Force Behind the Enactment of the CCA – the influence of Strasbourg:
CCA was enacted as a result of the Sunday Times v UK case
ECtHR did not feel that English law did enough to protect Art 10.
Before s10, judges had the power to compel journalists to reveal their sources at
common law.
