National Recognition of the Protection of Sources
Over 100 countries around the world have legally recognized the right of journalists to protect their sources. 1 In nearly twenty countries around the world, this legal protection is found in the national constitution. Over 90 countries have adopted specific provisions in their national laws on protection of sources including their press laws and criminal and civil procedure codes. Finally, the courts in a considerable number of countries have recognized the protection of sources in their national constitution, other laws or in the common law or based on international obligations.
Around 20 countries around the world have incorporated the recognition of protection of sources in their national constitutions. 2 This are mostly commonly found in Latin America where nearly half of the countries have some sort of constitutional protection. The following is a selection of different provisions.
Article 43 of the Constitution states "The secret nature of the sources of journalistic information shall not be impaired."
In Brazil, the Constitution states that "access to information is ensured to everyone and the confidentiality of the source shall be safeguarded, whenever necessary to the professional activity". 3
Article 59(8) states "Journalists shall be guaranteed, in terms of the law, access to sources of information and shall be assured of independence and professional secrecy, and no journalist shall be forced to reveal his sources of information."
Article 16 of the Constitution states "The right to protect a source of information in the mass media is guaranteed."
Article 74 (3) of the Mozambique Constitution states: "freedom of the press shall include […] Protection of professional independence and confidentiality."
Article 38 of the Portuguese Constitution defines freedom of the press as including "Journalists' right, as laid down by law, to gain access to sources of information and to the protection of professional independence and secrecy."
The Swedish Freedom of the Press Act, which is part of the constitution. Under the Act, anyone who is a source has a fundamental right to anonymity and it is prohibited as a criminal offence for journalists to break this duty of confidentiality. Liability is lodged in the editor rather than the journalist or other employees. The identities of sources are strongly protected from being disclosed except in limited circumstances such as breach of national security. Officials are prohibited from investigating unless it is specifically authorized by the Act. The Fundamental Law on Freedom of Expression, another constitutional instrument, extends the rights to radio, television and other technologies. 4
Article 41 provides that "Freedom of the press shall comprise, namely, the freedom of speech and creativity for journalists, the access to information sources, editorial freedom, protection of independence and professional confidentiality."
Article 20(d) of the constitution states that "The law shall regulate the right to the protection of the clause on conscience and professional secrecy in the exercise of these freedoms."
NATIONAL LAWS ON SOURCES
Over 90 countries have adopted national laws which protect journalists sources. 5
The range of protection provided under these laws varies. At a basic minimum, all of them guarantee journalists the right not to reveal the identities of their confidential sources. Some provide absolute protection; others protect sources subject to narrowly circumscribed exemptions. The following is a selection of laws.
The most comprehensive law in Europe on protection of sources is found in Belgium. 6 The law was adopted after the European Court of Human Rights found in 2003 that the state had violated Article 10 by ordering the raiding of several media houses to identify the source of leaks of information and the controversy over the EU-requested investigation of a German reporter. The law gives broad protection to any person "who directly contributes to editing, gathering, production or distribution of information for the public" from having to disclose the identity or any documents or information that may reveal their sources, the type of information given to them, the author of texts, or the documents or the content of information. The protection was broadened after the Cour d'arbitrage ruled in 2006 that it was not inclusive enough. Surveillance or searches cannot be used to bypass the protections and journalists cannot be prosecuted for refusing to testify for receiving stolen goods or breaching professional secrecy. The protections can only be overridden by a judge in cases relating to terrorism or serious threats to the physical integrity of a person and the information is of crucial importance and cannot be obtained any other way.
The 1995 Press Law states that "The Press has rights to maintain the confidentiality of its sources". 7
Article 109 (2) of the Code of Criminal Procedure provides that journalists do not have to testify about their sources of information: "Any journalist heard as a witness in respect of information collected in the course of his activities is free not to disclose its origin." 8
In Georgia, the 2004 Law on Freedom of Speech and Expression gives very strong rights on protection of sources:
"The source of a professional secret shall enjoy absolute protection and no one shall be entitled to demand its disclosure. No person shall be required to disclose the source of confidential information during court proceedings on the restriction of the right to freedom of speech and expression." 9
The Penal Code was amended in 2006 give absolute protection to the names of sources, telephone records, archives or any other information that could disclose the identity of the source and imposes criminal penalties on officials who violate the right. 10
The 2006 Evidence Act provides for protection of sources unless a judge finds that "the public interest in the disclosure of evidence of the identity of the informant outweighs (a) any likely adverse effect of the disclosure on the informant or any other person; and (b) the public interest in the communication of facts and opinion to the public by the news media and, accordingly also, in the ability of the news. 11
In Switzerland, Article 28a of the Swiss Penal Code extends broad protection to the source of published information, as well as to the identity of the author (in case of anonymous publication), the content of the publication and all research materials used. The same provision also shields journalists and media premises from search and seizure.
The Philippines also has a strong but qualified law. It was first adopted in 1946 and amended in 1956 to only allow for disclosure in cases of state security:
Without prejudice to his liability under the civil and criminal laws, the publisher, editor columnist or duly accredited reporter of any newspaper, magazine or periodical of general circulation cannot be compelled to reveal the source of any news-report or information appearing in said publication which was related in confidence to such publisher, editor or reporter unless the Court or a House or committee of Congress finds that such revelation is demanded by the security of the State. 12
The 2004 Press Law states that "The owner of the periodical, responsible editor, and owner of the publication cannot be forced to either disclose their news sources or to legally testify on this issue. 13
Section 10 of the Contempt of Court Act, 1981 states: "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." 14
Article 19 of Uganda's 1995 Press and Journalist Statute, for example, states: "A journalist shall not be compelled to disclose the source of his information except with the consent of the person who gave him the information or on an order of a court of law". 15
NATIONAL COURT DECISIONS ON SOURCES
There is a rich collection of decisions from courts around the world finding that protection of sources is essential to freedom of expression. These decisions can be found in all regions of the world, in a variety of different legal traditions. Most of the decisions exist outside or parallel to national provisions in national laws which set out the right.
The Cour d'Arbritrage ruled in 2006 that the rationale for the guarantee of the right to protect the secrecy of sources of journalistic information was "not to protect the interests of journalists as a professional group, but to allow the press to play its role of 'watchdog' and to inform the public on issues of public interest. For these reasons, this right is part of the freedom of expression and freedom of the press acknowledged in the constitutional and convention norms". 16 Therefore, the Court states that "every individual who carries out journalistic activities...has a right to the secrecy of their sources of information" and more specifically extends this right to those individuals "that do not carry out their journalistic activities as free-lancers or employees or that do not exercise such activities regularly".
The Supreme Court ruled in 1996 that the protection of sources was a fundamental element for freedom of information and freedom of expression, rather than just a privilege:
Freedom of the press, as it does not suffer from government interference or restrictions of a censorious character, is an expression of the high positive coefficient democratic social formations must qualify to be genuinely free. And the privilege of confidentiality of the source in this context is a means of preserving their own freedom of information. This clearly means that the prerogative regarding the confidentiality of the source, far from qualifying as a mere privilege of a personal or social stratification, sets, in fact, essential means of realizing the constitutional right to inform, proving to be enforceable, as a result, the any body or authority of the Government, no matter where the ball is within the institutional role of state officials concerned.
The constitutional protection that gives the journalist the right not to proceed with the "disclosure" of information source or not to reveal the person of his informant disallows any measure to pressure or embarrass the professional press to indicate the origin of information available to it, behold - insisting it does not cost - journalists in the subject of confidentiality of the source, do not expose the power of inquiry of the State or its agents and can not suffer, therefore, in the exercise of this legitimate constitutional prerogative, the imposition of any criminal penalty, civil or administrative. 17
In Canada, the Supreme Court has set out a nine point criteria that must be followed to allow the search of a media office. 18 Factors that must be considered include "ensur[ing] that a delicate balance is struck between the competing interests of the state in the investigation and prosecution of crimes and the right to privacy of the media in the course of their news gathering and news dissemination", if alternative sources have been considered, if the materials have already been published, as well as limits on searches and post-search determination on whether the material was found and if the search was conducted reasonably.
The Supreme Court of Justice ruled in 2008 that the protection of sources is "a condition sine qua non to guarantee freedom of information" which "is structured as a fundamental right that, moreover, is an institutional guarantee of the right to information in a pluralistic and democratic society." More precisely, the Court states that the object of the secret revealed to the journalist by his informant "is not the content of the information that forms the news...in that, its purpose is to be published or disseminated, therefore there is no secret on the news, but...on the identity of the informant and on every other piece of information – document in any format, notes, recording, filming, etc. – or circumstances that may contribute to his/her identification." 19
The Constitutional Court ruled in 1966:
[F]reedom of the press also includes a certain degree of protection for the confidential relationships between the press and its private sources of information. Such protection is absolutely essential since the press, while unable to forego privately supplied information, can only expect these sources of information to be productive when the providers of the information can be totally certain that "editorial secrecy" is upheld. 20
In 2007, the Constitutional Court ruled again that searches of newsrooms in investigations of state secrets cases impaired the right of freedom of the press under the Basic Law and were "constitutionally inadmissible" in preliminary investigations. 21
The Court of Appeal ruled in 1995 that the "newspaper rule", a common law rule on protecting sources in libel cases, applied in Hong Kong as a means to enhance freedom of expression:
[The lower court judge] balanced the public interest in upholding the administration of justice, the bringing of wrongdoers before the court, and the prevention of injustice on the one hand, against the public interest in 'upholding the principle of confidentiality which is so greatly valued by a free press' on the other, coming down firmly in favour of the former. However, it was not the public interest in confidentiality that he should have balanced but that in the free flow of information. Whereas it may well be necessary to discover the source of a leak of confidential information to secure justice, as in British Steel, that is not so in a libel action such as here. The remedy the plaintiff is presumably seeking (and all he could obtain) is damages which the defendant appears to be in the best position to provide. Action against the author or editors would not provide any further justice, nor has it been suggested or does it seem to be the case that the plaintiff is entitled to seek for whatever private purpose of his own, the identity of the person who was the source of the information. If the plaintiff wishes to pursue some such personal desire, he may be able to do so at trial or by means of a separate action. There seems to us to be no public interest in letting him to do so at this stage and certainly none that even begins to weigh against now the well-established and well-recognised public interest in the free flow of information. 22
The Japanese Supreme Court strongly affirmed the right in 2006, describing it as an "important social value" which must be considered when determining the balancing of interests:
[T]he freedom of reporting facts is protected under Article 21 of the Constitution which stipulates freedom of expression. In order to ensure correct press reports, not only the freedom of reporting news but also the freedom of gathering news should be deemed to fully deserve to be respected in light of the spirit of Article 21 of the Constitution […] Taking into consideration the above-mentioned significance of the freedom of news gathering, the secret of the news source should be deemed to have an important social value as something necessary for securing the freedom of news gathering. Consequently, the secret of the news source of a report should be construed to be worthy of protection in the case where the report relates to public interest, there are no special circumstances where the means or method employed for gathering news conflicts with any provision of general criminal law or the person who provided relevant information as a news source of the report has given consent to the disclosure of the secret of the news source, nor are there any circumstances where it is still significantly necessary to realize a fair trial, even when the social value of the secret of the news source is taken into consideration, because the civil case concerned is a serious one that has social significance and impact, and therefore the witness's testimony on the news source is indispensable. In such a case, it is appropriate to construe that the witness may, in principle, refuse to testify about the news source of the report. 23
The Court of Appeals of Lisbon ruled in 2006 that sources were essential for democracy and a free media:
The disclosure of a confidential source of information forms one of the most undignified behaviours of a journalist […] besides questioning his own personal credibility, it jeopardises the seriousness and credibility of all journalists and all organisms of information […] the protection of the professional secret is intrinsic to the functioning of freedom of the press and to the development of a democratic society. 24
In the UK, the Court of Appeals fully recognised the right of protection of sources in 2007, ruling that "it is now clear that the approach of the English courts to both section 10 of the 1981 Act and Article 10 of the Convention should be the same". 25 A recent lower court decision found that the UK was "effectively bound" by the Council of Europe regulations on protection of sources. 26
In a prior decision, Court of Appeals, Justice Denning expressed concern about wrongdoing going unrevealed:
[I]f [newspapers] were compelled to disclose their sources, they would soon be bereft of information which they ought to have. Their sources would dry up. Wrongdoing would not be disclosed. Charlatans could not be exposed. Unfairness would go unremedied. Misdeeds in the corridors of power, in companies or in government departments would never be known. 27
The Supreme Court ruled in 1973 that there is no constitutional right of journalists to refuse to testify before a grand jury about their sources of information. 28 The Court ruled that the government could not institute investigations in bad faith: "official harassment of the press undertaken not for purposes of law enforcement but to disrupt a reporter's relationship with his news sources would have no justification." However, the decision is somewhat limited. It was a minority opinion with a concurring opinion by Justice Powell, who recognised a qualified right to protection of sources. Since then many federal courts have found a limited privilege based on the Constitution, the common law or the Federal Rules of Evidence but this has not been universally held. 29
- 1. For a comprehensive overview, see Silencing Sources, An International Survey of Protections and Threats to Journalists' Sources (Privacy International, 2007). http://www.privacyinternational.org/foi/silencingsources.pdf
- 2. Andorra, Argentina, Bolivia, Brazil, Cape Verde, Colombia, Ecuador, Haiti, Hondurus, Macedonia, Mozambique, Palau, Paraguay, Peru, Portugal, Spain, Sweden, Timor Leste, Venezelua.
- 3. Constitution of Brasil, 1988 as amended 1996, Article 5, XIV.
- 4. The Fundamental Law on Freedom of Expression, SFS nr: 1991:1469.
- 5. See Banisar, Silencing Sources, Ibid.
- 6. Loi du 7 avril 2005 relative á la protection des sources journalistiques.
- 7. Cambodia Press Law 1995.
- 8. Code of Criminal Procedure, Article 109
- 9. Law on Freedom of Speech and Expression § 11.
- 10. Código Penal Federal, 243 Bis inciso III.
- 11. Evidence Act 2006, §68.
- 12. The Philippines Republic Act No. 53 (amended by RA 1447).
- 13. Press Law, No: 5187, §12, 9 June 2004.
- 14. Contempt of Court Act 1981, §10.
- 15. The Press and Journalist Statute, 1995, §39.
- 16. Cour d'Arbritrage, Arrêt No. 91/2006 du 7 Juin 2006
- 17. Supreme Federal Tribunal, - inquérito n° 870-2/RJ – rel. Min. Celso de Mello, Diário da Justiça, Seção I, 15 de abril de 1996, pp 11.462
- 18. Canadian Broadcasting Corp. v. Lessard,  3 S.C.R. 000; Canadian Broadcasting Corp. v New Brunswick (Attorney General),  3 S.C.R. 459, 1991.
- 19. Expediente No. 07-005291-0007-CO - Res. 7548-2008 (10 May 2008)
- 20. 20 BVerfGE 162 - Spiegel, 5 August 1966.
- 21. 1 BvR 538/06; 1 BvR 2045/06 – Cicero, 27 February 2007.
- 22. Sham John v. Eastweek  1 HKC 264
- 23. Case 2006 (Kyo) No. 19, Minshu Vol. 60, No. 8, 2006.10.03.
- 24. Proc. No. 7139/065, 10 January 2006.
- 25. Mersey Care NHS Trust v Ackroyd,  EWCA Civ 101.
- 26. Regina v Kearney, Webb & Murrer, Case No T20077479, 25 November 2008
- 27. British Steel Corpn v Granada Television Ltd,  1 All ER 417. (Lord Denning).
- 28. Branzburg v. Hayes, 408 U.S. 665 (1972).
- 29. See e.g. Cusumano v. Microsoft Corp., 162 F.3d 708, 715 (1st Cir. 1998), For an extensive overview, see Reporters Committee for Freedom of the Press, Privilege Compendium, http://www.rcfp.org/privilege/