A Framework for a Free Press
This essay is excerpted from Media Law Handbook , published by the Bureau of International Information Programs.
The right of a journalist to protect confidential sources and unpublished information from disclosure is essential to promoting both the free flow of information and the public's right to know. Reporters must be able to assure their sources that their identities will remain secret in order to encourage them to speak freely. They must also be able to protect the fruits of their news gathering from scrutiny by government or private entities in order to maintain their editorial independence. Without these privileges, the ability of the press to scrutinize government and to uncover corruption would be severely compromised.
Most media codes of ethics require that journalists protect the confidentiality of their sources. For a reporter, this is both a matter of honor and a pragmatic necessity. A journalist who violates a promise of confidentiality will not be trusted by other sources in the future. For this reason, journalists will protect their sources, even if it means facing contempt of court.
The rationale for recognizing a reporter's privilege was persuasively set forth by the European Court of Human Rights (ECtHR) in Goodwin v. United Kingdom (1996). The case involved reporter William Goodwin, who had received a company's confidential financial information from a source whose identity he had agreed to keep secret. The company claimed that the material had been stolen and obtained an injunction restraining publication of the information, as well as an order under the Contempt of Court Act to compel Goodwin to reveal his source's identity "in the interests of justice" so that it could take legal action against the source.
After the Court of Appeal and the House of Lords upheld the order, Goodwin appealed to the ECtHR, where he argued that under Article 10 of the European Convention on Human Rights (ECHR), only exceptional circumstances could justify compelling him to testify. For its part, the British government contended that no compelling public interest justified recognizing the privilege in this situation, especially given that the source had, at worst, acted irresponsibly in providing the proprietary business information to Goodwin.
The court ruled in favor of Goodwin, finding that the company's interest in pursuing the source was not sufficient to outweigh the public's interest in protecting the right of journalists to keep sources confidential:
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.
All countries that are parties to ECHR are bound by the Goodwin decision, but the decision has been influential even outside the European Union. Other international and regional bodies, including the Inter-American Commission on Human Rights and the African Commission on Human and People's Rights, have issued declarations recognizing the right of journalists to maintain the confidentiality of their sources and unpublished information.
In some countries, the journalist's privilege is included in the constitution. For example, the Constitution of Palau says, "No bona fide reporter may be required by the government to divulge or be jailed for refusal to divulge information obtained in the course of a professional investigation." Sweden's Freedom of the Press Act, which is part of the national constitution, provides an expansive privilege for journalists, subject only to a limited number of exceptions, such as if the source is suspected of espionage or treason, or if an accused person demonstrates that the information sought is essential for her defense in a criminal case. The law also provides that a journalist who reveals a source without consent may be prosecuted.
In other countries, courts have ruled that the journalist's privilege may be derived from constitutional provisions. In 2006 in Japan, for example, the Supreme Court found that Article 21 of the constitution, which guarantees freedom of expression, also protects "the freedom of gathering news," as well as the reporting of news. In Canada in 2008, the Ontario Court of Appeal struck down a finding of contempt against a reporter who refused to disclose the source of leaked confidential municipal investigative reports concerning a nonprofit nursing home. It ruled that the right to protect confidential sources is an essential part of freedom of expression as recognized under the Canadian Charter of Rights and Freedoms. "The likely effect of revealing a journalist's confidential source," the court said, "would be to discourage from coming forward other potential sources who, for whatever reason, need to conceal their identity." Although it declined to find an absolute privilege go
verning all confidential communications obtained in the course of reporting, the court nevertheless recognized that the contempt power should be used only as a last resort, mindful of the competing rights at stake.
Some other nations have by statute granted journalists a privilege to avoid testifying under specified circumstances. About 20 countries have adopted legislation giving journalists absolute rights to protect their sources, among them Mexico, Indonesia, Mozambique, and Turkey. More common are national laws that recognize a qualified privilege, which may be overcome under certain situations. Armenia, for example, grants the privilege but withdraws it in cases where the information sought is directly related to a heinous criminal case when the public interest in disclosure is strong. In some countries, including Germany and the United States, statutory protection has been left to the individual states. Like the national laws, these statutes can be either absolute or qualified in scope.
In the United States, although 39 states, plus the District of Columbia, have enacted journalists' shield laws, Congress has considered, but has failed to pass (as of summer 2010), federal legislation recognizing a reporter's privilege. This means that state shield laws apply in some state court proceedings but not in the federal court system.
(This is a product of the Bureau of International Information Programs, U.S. Department of State. )
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