The Right of Protection of Sources in International Law
The right of protection of journalists' sources is firmly recognized by nearly all major international human rights bodies including the United National (UN), Council of Europe (CoE), Organisation for Security and Cooperation in Europe (OSCE), the Organisation of American States (OAS), and the African Union (AU). In most of these international organisations, both the political and associated judicial bodies have recognized the privilege.
The international instruments written by the bodies all agree that the protection of sources is "indispensable", an "essential element", and a "basic condition for press freedom" which is necessary to ensure the free flow of information as recognized in all international human rights agreements. Without it, the media will not be able to effectively gather information and provide the public with information and act as an effective watchdog.
These bodies fully recognise that at a minimum, that the identity of sources must be protected from disclosure in most cases and that any disclosure is limited to serious cases which must balance the interest of the party with that of the free flow of information to society.
THE UNITED NATIONS SYSTEM
The right of protection of sources emanates from the Universal Declaration of Human Rights and the International Covenant on Civil Political Rights(ICCPR). Article 19 (2) of the ICCPR states:
Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.
The UN Commission on Human Rights has also recognised the right, stating in its annual resolution in 2005 on Freedom of Opinion and Expression that it was "stressing the need to ensure greater protection for all media professionals and for journalistic sources". 1
The UN Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, a specialist official appointed by the UN Human Rights Commission, has repeatedly stated that the protection of sources has a "primary importance" for journalists to be able to obtain information and that the power to force disclosure should be strictly limited:
[I]n order for journalists to carry out their role as a watchdog in a democratic society, access to information held by public authorities, granted on an equitable and impartial basis, is indispensable. In this connection, the protection of sources assumes primary importance for journalists, as a lack of this guarantee may create obstacles to journalists' right to seek and receive information, as sources will no longer disclose information on matters of public interest. Any compulsion to reveal sources should therefore be limited to exceptional circumstances where a vital public or individual interest is at stake. 2
The Special Rapporteur, in cooperation with his counterparts, the OSCE Representative on Freedom of the Media, the OAS Special Rapporteur on Freedom of Expression and the ACHPR (African Commission on Human and Peoples' Rights) Special Rapporteur on Freedom of Expression and Access to Information in December 2008 issued a declaration stating:
Normal rules on the protection of confidentiality of journalists' sources of information – including that this should be overridden only by court order on the basis that access to the source is necessary to protect an overriding public interest or private right that cannot be protected by other means – should apply in the context of anti-terrorist actions as at other times. 3
The United Nations International Criminal Tribunal for Yugoslavia (ICTY) ruled in 2004 that "a vigorous press is essential to the functioning of open societies and that a too frequent and easy resort to compelled production of evidence by journalists may, in certain circumstances, hinder their ability to gather and report the news." The Court decided that war correspondents have a qualified privilege to not testify because of the possible physical dangers that they might find themselves in if they are perceived to be future witnesses in war crimes trials:
[I]n order to do their jobs effectively, war correspondents must be perceived as independent observers rather than as potential witnesses for the Prosecution. Otherwise, they may face more frequent and grievous threats to their safety and to the safety of their sources […] What really matters is the perception that war correspondents can be forced to become witnesses against their interviewees. Indeed, the legal differences between confidential sources and other forms of evidence are likely to be lost on the average person in a war zone who must decide whether to trust a war correspondent with information. […] If war correspondents were to be perceived as potential witnesses for the Prosecution […] war correspondents may shift from being observers of those committing human rights violations to being their targets, thereby putting their own lives at risk. 4
The ICTY stated that a two part test must be satisfied before a journalist can be compelled to testify before the Tribunal: "First, the petitioning party must demonstrate that the evidence sought is of direct and important value in determining a core issue in the case. Second, it must demonstrate that the evidence sought cannot reasonably be obtained elsewhere." 5
In 2009, the Special Court for Sierra Leone, set up jointly by the United Nations and the government of Sierra Leone, ruled that the privilege protected all persons who help the journalist in the news gathering capacities. 6 The Chamber cited decisions of the European Court of Human Rights (see below) in finding that the failure of protect sources would "sources may be deterred from assisting the press and informing the public on matters of interest":
The extension of privilege to journalistic sources stems from the right to freedom of expression and serves to protect the freedom of the press and the public interest in the free flow of information. [...] Further, both a "facilitator" and a "source" may run similar risks to personal safety and/or face other reprisals as a result of their willingness to assist a journalist in his or her reporting. This is especially true in situations of conflict , where tensions are heightened, where the threat of violence may be imminent and where "accurate information is often difficult to obtain and may be difficult to distribute or disseminate as well." Similarly, a journalist reporting from a conflict zone who is forced to testify as to his or her sources may put his or her own life at risk by shifting from the role of an observer of those committing human rights violations to being their target.[…] The Trial Chamber therefore finds that the unnamed persons are journalistic "sources" as they are persons who provided assistance or the conditions for a newsgathering function to be carried out and that the Witness has journalist privilege in relation to their names.
The Trial Chamber is of the view that no less restrictive measures would properly satisfy journalistic privilege protection. As outlined above, the underlying rationale behind the journalistic privilege is to ensure freedom of expression and the public interest in the free flow of information. The question, therefore, is not only a matter of whether the persons the Witness refuses to name would be exposed to any real danger by being named in Court, which, as argued by the Defence, might adequately be compensated for by eliciting the information in closed or private session." Rather, the anonymity of the Witness's sources is essential to en sure that the newsgathering function of journalists, especially in situations of conflict, is not threatened. This necessarily requires that, in the absence of an overriding interest to the contrary, journalistic sources remain confidential to all other parties except the journalist.
COUNCIL OF EUROPE AND THE ORGANISATION FOR SECURITY AND COOPERATION IN EUROPE
The legal recognition of the protection of journalists sources is firmly established in the European system of law. Article 10 of the European Convention on Human Rights sets out clear protections for freedom of expression. It states:
Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.
In a series of cases, starting in 1996, the European Court of Human Rights has firmly established the protection of sources as a fundamental right under Article 10. The privilege was first established in Goodwin v UK where the Grand Chamber stated that the protection of sources was an essential part of freedom of expression and subject to the full protections of the freedom of expression:
Protection of journalistic sources is one of the basic conditions for press freedom.... Without such 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 information may be adversely affected. Having regard to the importance of the protection of journalistic sources for press freedom in a democratic society and the potentially chilling effect an order of source disclosure has on the exercise of that freedom, such a measure cannot be compatible with Article 10 of the Convention unless it is justified by an overriding requirement in the public interest. 7
In the 1997 case of De Haes and Gijsels v. Belgium, the Court ruled that a judgment against two journalists in a defamation case who refused to disclose their sources violated their fair trial rights under Article 6 of the European Convention on Human Rights.8
In 2003, in the case of Roemen and Schmit v. Luxenbourg, the court found that the searches of journalists' offices and homes to discover the source of information to a story violated both Article 10 and the journalist's Article 8 right of privacy. 9 The court found that the violation of Article 10 was even more severe than the violation in the Goodwin case:
In the Court's opinion, there is a fundamental difference between this case and Goodwin. In the latter case, an order for discovery was served on the journalist requiring him to reveal the identity of his informant, whereas in the instant case searches were carried out at the first applicant's home and workplace. The Court considers that, even if unproductive, a search conducted with a view to uncover a journalist's source is a more drastic measure than an order to divulge the source's identity. This is because investigators who raid a journalist's workplace unannounced and armed with search warrants have very wide investigative powers, as, by definition, they have access to all the documentation held by the journalist. The Court reiterates that "limitations on the confidentiality of journalistic sources call for the most careful scrutiny by the Court". It thus considers that the searches of the first applicant's home and workplace undermined the protection of sources to an even greater extent than the measures in issue in Goodwin.
In another 2003 case of Ernst and Others v. Belgium, the court found that a search by 160 police officers against the offices and homes of four journalists to identify the confidential sources of their stories about an ongoing criminal investigation again violated Article 10 and Article 8. 10 The court ruled that the "massive" simultaneous raids were insufficiently justified and disproportionate compared to the interests under Article 10.
The same approach has been advocated by the Council of Europe's standard-setting bodies. In 1994, the 4th European Ministerial Conference on Mass Media Policy described protection of sources as "enabl[ing] journalism to contribute to the maintenance and development of genuine democracy".11
The Committee of Ministers Recommendation (2000)7 on Protection of SourcesErnst and Others v. Belgium - 33400/96  ECHR 359 (15 July 2003). calls for every member state to adopt in their domestic law and practices the following protections: 12
Right of non-disclosure of journalists. Countries should adopt explicit and clear legal protection giving journalists the right to not disclose their sources;
Right of non-disclosure of other persons. The protections should apply to all those engaged in the journalistic enterprise, including editors, support staff and outside organisations;
Limits to the right of non-disclosure. The protection is only limited in cases where reasonable alternatives have failed, the public interest in disclosure clearly outweighs the need to protect in sufficiently vital and serious cases responding to a "pressing social need" supervised by the ECtHR;
Alternative evidence to journalists' sources. In cases of libel and defamation, courts should review all available evidence and not force the release of information about sources;
Conditions concerning disclosure. Disclosure orders are limited to the involved parties; journalists should be informed about their rights; sanctions should only be imposed by courts following and subject to review by a higher court; courts should impose measures to limit further disclosures of sources;
Interception of communication, surveillance and judicial search and seizure. Searches or surveillance should not be used to bypass protections;
Protection against self-incrimination. No limits on the right against self-incrimination.
The Committee of Ministers recommendation set out detailed process that all European countries should follow before disclosure can be made:
a. The right of journalists not to disclose information identifying a source must not be subject to other restrictions than those mentioned in Article 10, paragraph 2 of the Convention. In determining whether a legitimate interest in a disclosure falling within the scope of Article 10, paragraph 2 of the Convention outweighs the public interest in not disclosing information identifying a source, competent authorities of member States shall pay particular regard to the importance of the right of non-disclosure and the pre-eminence given to it in the case-law of the European Court of Human Rights, and may only order a disclosure if, subject to paragraph b, there exists an overriding requirement in the public interest and if circumstances are of a sufficiently vital and serious nature.
b. The disclosure of information identifying a source should not be deemed necessary unless it can be convincingly established that:
reasonable alternative measures to the disclosure do not exist or have been exhausted by the persons or public authorities that seek the disclosure, and
the legitimate interest in the disclosure clearly outweighs the public interest in the non-disclosure, bearing in mind that:
an overriding requirement of the need for disclosure is proved,
the circumstances are of a sufficiently vital and serious nature,
the necessity of the disclosure is identified as responding to a pressing social need, and
member States enjoy a certain margin of appreciation in assessing this need, but this margin goes hand in hand with the supervision by the European Court of Human Rights.
The Council of Europe has also given special recognition to the need for protection of sources in conflicts and other dangerous circumstances. In 1996, the Committee of Ministers called on member states to ensure the confidentiality of sources in "situations of conflict and tension". 13 The Committee of Ministers affirmed the need for protection in these situations in 2005 with a declaration that member states should not undermine protection of sources in the name of fighting terrorism noting that "the fight against terrorism does not allow the authorities to circumvent this right by going beyond what is permitted by [Article 10 of the ECHR and Recommendation R (2000) 7]". 14
In 2007, the Committee of Ministers issued "Guidelines on protecting freedom of expression and information in times of crisis" which recommended that member states adopt the 2000(7) recommendations into law and practice and further recommended that:
With a view, inter alia, to ensuring their safety, media professionals should not be required by law-enforcement agencies to hand over information or material (for example, notes, photographs, audio and video recordings) gathered in the context of covering crisis situations nor should such material be liable to seizure for use in legal proceedings. 15
The Council of Europe is not the only European-based inter-governmental organization that has issued guidelines on protection of journalists sources. The Organisation for Security and Co-operation in Europe (OSCE), an organization of 56 member states across Europe, Central Asia and North America, has long recommended protection of sources. In 1986, the OSCE (then known as the Conference on Security and Co-operation in Europe) agreed to principles on protecting the media, including protecting sources: 16
They will 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.
In 2007, the OSCE Representative on Freedom of the Media released a study of the participating States' recognition of sources protection.17 The survey found that the protection of sources was generally recognized in OSCE countries. He recommended that the States harmonize their laws with the following principles:
Each participating State should adopt an explicit law on protection of sources to ensure these rights are recognized and protected.
Journalists should not be required to testify in criminal or civil trials or provide information as a witness unless the need is absolutely essential, the information is not available from any other means and there is no likelihood that doing so would endanger future health or well being of the journalist or restrict their or others ability to obtain information from similar sources in the future.18
The right of protection of sources is also recognized by the African Union. Article 9 of the African Charter on Human and Peoples' Rights states that:
1. Every individual shall have the right to receive information.
2. Every individual shall have the right to express and disseminate his opinions within the law.
In 2002, the African Commission on Human and Peoples Rights issued the Declaration of Principles on Freedom of Expression in Africa to further elaborate on the rights under Article 9. Section XV on "Protection of Sources and other journalistic material" states:
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. 19
THE ORGANISATION FOR AMERICAN STATES
The American Convention on Human Rights, adopted in 1969, sets out one of the strongest international protections of freedom of expression. Article 13(1) states:
Everyone has the right to freedom of thought and expression. This right includes freedom to seek, receive, and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing, in print, in the form of art, or through any other medium of one's choice.
In 2000, the Inter-American Commission on Human Rights issued a Declaration on Freedom of Expression to better set out the rights as protected under Article 13. which states:
Every social communicator has the right to keep his/her source of information, notes, personal and professional archives confidential. 20
In 2002, the Commission reaffirmed the importance of protection of sources and recognized that it is a right given to journalists, rather than a duty imposed upon them:
Freedom of expression is understood as encompassing the right of journalists to maintain the confidentiality of their sources. It is the social communicator's right not to reveal information or documentation that has been received in confidence or in the course of research. Professional confidentiality allows journalists to assure sources that they will remain anonymous, reducing fears they may have of reprisals for disclosing information. As a result, journalists are able to provide the important public service of collecting and disseminating information that would not be made known without protecting the confidentiality of the sources. Confidentiality, therefore, is an essential element of the work of the journalist and of the role society has conferred upon journalists to report on matters of public interest […] It should be emphasized that this right does not constitute a duty, as the social communicator does not have the obligation to protect the confidentiality of information sources, except for reasons of professional conduct and ethics. 21
In its 2003 report on the situation in Venezuela, the Commission further described the scope of the right:
The Commission holds that the right to protect confidential sources is an ethical duty inherent to journalistic responsibility. Furthermore, the IACHR states that this issue also involves the interests of the sources, in the sense of being able to rely on confidentiality – when, for example, information is given to the journalist on such conditions. The IACHR holds that revealing sources of information has a negative and intimidating effect on journalistic investigations: seeing that journalists are obliged to reveal the identities of sources who provide them with information in confidence or during the course of an investigation, future sources of information will be less willing to assist reporters. The basic principle on which the right of confidentiality stands is that in their work to provide the public with information, journalists perform an important public service by gathering together and disseminating information that would otherwise not be known. Professional confidentiality has to do with the granting of legal guarantees to ensure anonymity and to avoid potential reprisals that could arise from the dissemination of certain information. Confidentiality is therefore an essential element in journalism and in the task of reporting on matters of public interest with which society has entrusted its journalists. 22
- 1. The right to freedom of opinion and expression, Human Rights Resolution 2005/38, E/CN.4/2005/L.10/Add.11, 19 April 2005.
- 2. Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, Mr. Abid Hussain, submitted pursuant to Commission resolution 1997/27, Addendum: Report on the mission of the Special Rapporteur to the Republic of Poland. E/CN.4/1998/40/Add.2, 13 January 1998. See also Commission on Human Rights, Report of the Special Rapporteur Mr. Ambeyi Ligabo, submitted in accordance with Commission resolution 2002/48, E/CN.4/2003/67, 30 December 2002; Promotion and protection of the right to freedom of opinion and expression, Report of the Special Rapporteur, Mr. Abid Hussain, submitted pursuant to Commission on Human Rights resolution 1997/26 E/CN.4/1998/40 28 January 1998.
- 3. The UN Special Rapporteur on Freedom of Opinion and Expression, the OSCE Representative on Freedom of the Media, the OAS Special Rapporteur on Freedom of Expression and the African Commission on Human and Peoples' Rights Special Rapporteur on Freedom of Expression and Access to Information, Joint Declaration on Defamation of Religions, and Anti-Terrorism and Anti-Extremism Legislation, December 2008.
- 4. Prosecutor v Radoslav Brdjanin and Momir Talic, Case IT-99-36-AR73.9, Decision on Interlocutory Appeal, 11 Dec 2002.
- 5. Id.
- 6. Prosecutor v. Taylor, Case No. SCSL-03-1-T, Decision on the Defence Motion for the Disclosure of the Identity of a Confidential 'Source' Raised During Cross-Examination of TF1-355 (Mar. 6, 2009).
- 7. Goodwin v. The United Kingdom - 17488/90  ECHR 16 (27 March 1996).
- 8. De Haes and Gijsels v. Belgium,  25 E.H.R.R. 1.
- 9. Roemen and Schmit v. Luxembourg - 51772/99  ECHR 102 (25 February 2003).
- 10. Ernst and Others v. Belgium - 33400/96  ECHR 359 (15 July 2003).
- 11. 4th European Ministerial Conference on Mass Media Policy - Prague, 7-8 December 1994: The media in a democratic society, Resolution No. 2: Journalistic Freedoms and Human Rights.
- 12. Committee of Ministers Recommendation R (2000)7 on Protection of Sources
- 13. Committee of Ministers Recommendation No. R (96) 4 on the Protection of Journalists in Situations of Conflict and Tension, 3 May 1996.
- 14. Declaration on freedom of expression and information in the media in the context of the fight against terrorism, 2 March 2005.
- 15. Guidelines of the Committee of Ministers of the Council of Europe on protecting freedom of expression and information in times of crisis. Adopted by the Committee of Ministers on 26 September 2007 at the 1005th meeting of the Ministers' Deputies.
- 16. Concluding Document of the Vienna Meeting 1986 of Representatives of the Participating States of the Conference on Security and Co-Operation in Europe, Held on the Basis of the Provisions of the Final Act Relating to the Follow-Up to the Conference: Co-operation in Humanitarian and Other Fields, §40.
- 17. Organization for Security and Co-operation in Europe, The Representative on Freedom of the Media, Access to information by the media in the OSCE region: trends and recommendations, Summary of preliminary results of the survey, 30 April 2007.
- 18. See Organization for Security and Co-operation in Europe, Representative on Freedom of the Media, Access to information by the media in the OSCE region: trends and recommendations. Summary of preliminary results of the survey, 30 April 2007.
- 19. African Commission on Human and Peoples Rights, Declaration of Principles on Freedom of Expression in Africa, Principle X.
- 20. Inter-American Declaration of Principles on Freedom of Expression. Approved by the Inter-American Commission on Human Rights, 108th regular sessions, October 2000.
- 21. Report on Terrorism and Human Rights, OEA/Ser.L/V/II.116 Doc. 5 rev. 1 corr., 22 October 2002,http://www.cidh.org/Terrorism/Eng/part.k.htm
- 22. Inter-American Commission on Human Rights, Report on the Situation of Human Rights in Venezuela OEA/Ser.L/V/II.118 doc. 4 rev. 2 29 December 2003.