Doreen Weisenhaus Associate Professor and

Director, Media Law Project 19 October 2016

https://www.youtube.com/watch?v=NvIRZ6bfb3c

Ethics v Law

•  Good journalism: clear identification of sources

•  But sometimes, often in most important stories, it is necessary to protect identity of confidential sources

•  Usually regarded as basic ethical principle of journalism. What does law have to say about it?

•  Stricter ethics codes…

New York Times’ new policy on anonymous sources, 2016 •  A story whose primary news element requires

anonymity requires an in-depth conversation with a major masthead editor such as Executive Editor or Deputy Executive Editor

•  Every other instance of anonymity has to be approved by a department head or their deputy.

•  Anonymous direct quotes will be rarer and must be approved by a department head or deputy.

•  An editor must know the identity of an anonymous source before publication.

Different names, forms •  Reporter’s privilege •  Journalist’s privilege •  Shield law •  Protecting sources •  Protecting journalistic material •  Protecting whistleblowers (related)

Landmark international case ECtHR, 1996 •  Goodwin v United Kingdom •  Journalist who refused to reveal her source

and was fined in contempt •  Violated right to receive and impart

information •  Journalists have right not to disclose sources

unless overriding interest outweighs confidentiality

•  Cited public watchdog role

What the Strasbourg Court said: “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.”

Article 10 ECHR •  1. 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…

•  2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions 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 the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence….

•  Remember, 3-part test!

Does this just apply to journalists?

Does this apply just to journalists? In the modern age, can other “social communicators” invoke the protection of sources? •  This is not a special right enjoyed by journalists •  Also, protection of a source or whistle-blower.

“Every social communicator has the right to keep his/her source of information, notes, personal and professional archives confidential.” (Inter-American Commission of Human Rights)

Singapore blogger successfully invoked principle

•  “Whistle blowing and the reporting of corrupt activities by credible parties… should not be unnecessarily deterred by the courts, as such activities, given their surreptitious nature, are usually very difficult to detect. In fact, it should be reiterated that there is a compelling public interest consideration ever present in Singapore to encourage whistle blowing against corruption….” (Singapore Court of Appeal, Dorsey v. World Sport Group)

Post-Goodwin •  Wider definition of “journalist” •  Council of Europe’s Committee of Ministers: “The

term journalist means any natural or legal person who is regularly or professional engage in the collection and dissemination of information to the public via any means of mass communication.”

•  Issued a Recommendation to its member states on how to implement the protection of sources in their domestic legislation.(Recommendation No. R (2000)

•  Organization for Security and Co-operation in Europe has also called on states to respect the right.

Post-Goodwin More ECtHR cases upholding the public interest in protecting sources

•  2009 Financial Times v. UK

•  2010 Sanoma Uitgevers v. Netherlands

•  2015 Burundi Journalist Union v AG of Republic of Burundi (East African Court of Justice): journalists could not be compelled to reveal sources merely because the information they provided related to national security/defence

But what about domestic laws? •  Domestic laws likely to more narrowly define

journalist •  Uzbekistan: “A journalist is a natural person who

works for mass media” •  But Estonia: “people processing information for

journalistic purpose” •  Global study in 2007 by Privacy International found

widespread legal recognition •  More than 100 countries adopted laws allowing

journalists to keep promises to confidential sources •  Most significant problems in countries lacking specific

law (US, Canada, Ireland, etc) •  New UNESCO study in 2015, detailing more than

120 countries

2015 Unesco study •  Source protection laws are at risk of being trumped by national

security and anti-terrorism legislation that increasingly broadens definitions of ‘classified information’ and limits exceptions for journalistic acts

•  The widespread use of mass and targeted surveillance of journalists and their sources undercuts legal source protection frameworks by intercepting journalistic communications pre-publication

•  Expanding requirements for third-party intermediaries to mandatorily retain citizens’ data for increasingly lengthy periods of time further exposes journalistic communications with confidential sources

•  Debates about digital media actors’ entitlement to access source protection laws where they exist, are intensifying around the world.

•  84 UNESCO Member States out of 121 studied (69 per cent) for this report demonstrated noteworthy developments, mainly with negative impact, concerning journalistic source protection between 2007 and mid-2015

•  The issue of source protection has come to intersect with the issues of mass surveillance, targeted surveillance, data retention, the spill-over effects of anti- terrorism/national security legislation, and the role of third party internet companies known as ‘intermediaries’

• 

More on Unesco study

Question for discussion What if it is in the journalist’s interest to reveal the source (for example if she is being sued for defamation and needs to prove the truth of an allegation)? Should she reveal the source? Should the court compel her to?

Exceptions to this principle? Yes, but only in the following circumstances:

•  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 the freedom of expression; and

•  Disclosure has been ordered by a court, after a full hearing.

(Declaration of Principles on Freedom of Expression in Africa)

Is there a journalistic privilege not to be compelled to testify? The Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia struck down a subpoena for a war correspondent as this would make their job more dangerous. The Court devised a two-part test to reach this conclusion: •  Did the journalist have information of direct value to

the case? •  Was there any alternative means of obtaining the

information? (Prosecutor v. Radoslav Brdjanin & Momir Talic, 2002)(Randal case)

Protecting confidential sources/materials in US •  Branzburg v Hayes (1972), journalists did not have

1st Amendment privilege to refuse to testify before grand jury

•  Despite this, courts have said there is a constitutional, common law privilege protecting journalists subpoenaed to testify at legal hearing

•  However, in recent times, reporters from NYT,Time, others have been forced to testify in criminal cases

•  Government must "convincingly show a substantial relation between the information sought and a subject of overriding and compelling state interest."

•  •Now, maybe even civil cases •  In 2007, Congress began considering a federal

shield law. Still not passed.

Protecting confidential sources/materials in US

•  Newsroom raids: Zurcher v. Stanford Daily (1978) First Amendment did not prevent: “where materials

sought to be seized may be protected by 1st Amendment, the requirements of the 4th Amendment must be applied with scrupulous exactitude”

•  Privacy Protection Act 1980: limits government from

search/seizure of materials from journalists. •  Must get a subpoena (search warrant not enough)

unless believed that reporter has committed crime, that someone will be harmed if materials are not seized or if police fear materials might be destroyed if subpoena sought.

Protecting confidential sources/materials in UK

•  • Contempt of Court Act 1981 (HK does not have): “No court may require a person to disclose…the source of information contained in a publication for which he is responsible unless it is established to the satisfaction of the court that is necessary in the interests of justice or national security or for the prevention of disorder or crime.”

•  2011, UK police invoked Official Secrets Act to try to force Guardian to disclose sources in phone hacking case. Later dropped

•  2013: UK forced Guardian to destroy documents in computer hard drives in Snowden case!

•  Advice from lawyers: if journalist about to publish article revealing official secrets, destroy material leading to source’s identity!

Protecting confidential sources/materials in UK

•  Newsroom raids: Police and Criminal Evidence Act 1984 excludes “journalistic material,” “material acquired or created for purposes of journalism”

•  – Must be held in confidence. If not, police must show public interest in obtaining. E.g., film. Generally, police not entitled to search warrant for excluded material, but usually for official secrets

•  Journalists protected unless it is “necessary in the interests of justice or national security for prevention of disorder or crime.”

– In 1980s Guardian forced to hand over papers which revealed source of details on delivery of missiles. The source, a civil servant in foreign office, was jailed.

Hong Kong Production orders: •  for producing tapes, notes, unaired

video for criminal investigations (Commissioner of Police v TVB, 2016 videos of Occupy Central, Court: no basis” for believing that any general footage would be of “substantial value to the investigation” Why? Already uploaded!)

Newsroom raids: no need to show real risk of material destroyed/missing •  Enough to show “may seriously

prejudice investigation

Hong Kong •  Can a reporter refuse to reveal his sources? •  No reporter shield law in HK •  John Sham case: “The Newspaper Rule” – Defendant at pretrial stage of defamation case should NOT be forced to disclose source of information. Generally considered to have broader application. •  In another Apple Daily case, paper did not have to disclose reporter’s name •  What about cases of “theft of state secrets”?

Some developments in Asia •  Philippines: 1946 shield law (print only?) •  Mongolia: 2005 Law on Public Radio & TV

guarantees protection for non-disclosure of sources only for journalists with national broadcaster

•  Malaysia: proposed amendment to Official Secrets Act to penalize whistleblowers, prosecute journalists for use of anonymous sources

•  Cambodia: whistleblower protection bill? •  Indonesia: “Right of refusal,” Press Law 1999 •  Myanmar: Nothing yet??

Best practices for journalists* •  Many countries offer legal safeguards but those protections

are often uncertain and cannot be presumed •  Ultimate source protection: ETHICS •  Positive assertion you agree source is confidential. Not just

“off record” or “unattributable” •  Journalist’s responsibility to ascertain veracity and

reliability of source. •  Confidentiality should not be used indiscriminately •  In post-Snowden world, journalists need to be aware of

technical trail (encryption. E.g., Laura Poitras: How Journalists Use Crypto To Protect Sources, https://www.youtube.com/watch?v=aviUKt7adU8

•  Be wary of getting too close to source: don’t let source decide what to publish

•  Manage sources carefully: Decide early what support can be given (e.g., expenses, other payment). Will it trigger bribery laws. Can’t be tainted

•  *Tips from Gillian Phillips, legal counsel, The Guardian

Hypothetical case for discussion You are a judge. The police have applied to you for an order to seize unbroadcasted television footage of recent civil disturbances. There are a number of criminal cases arising out of the disturbances and the police believe that there may be evidence in the footage that can be used to build their cases. The television company argues that surrendering the footage will compromise its future ability to cover public events, especially where violence takes place or is threatened. What is your decision?

Thanks to:

•  Media Legal Defence Initiative •  Gill Phillips •  Article 19