Source protection, sometimes also referred to as source confidentiality or in the U.S. as the reporter's privilege, is a right accorded to journalists under the laws of many countries, as well as under international law. It prohibits authorities, including the courts, from compelling a journalist to reveal the identity of an anonymous source for a story. The right is based on a recognition that without a strong guarantee of anonymity, many would be deterred from coming forward and sharing information of public interests with journalists.
Regardless of whether the right to source confidentiality is protected by law, the process of communicating between journalists and sources can jeopardize the privacy and safety of sources, as third parties can hack electronic communications or otherwise spy on interactions between journalists and sources. News media and their sources have expressed concern over government covertly accessing their private communications. To mitigate these risks, journalists and sources often rely on encrypted messaging.
- 1 Relevance
- 2 Status around the world
- 3 Technology
- 4 See also
- 5 References
- 6 External links
Due to the centrality of communication between journalists and sources to the daily business of journalism, the question of whether or not sources can expect to have their identity protected has significant effects on the ability of media to operate and investigate cases. If a potential source can expect to face legal retaliation or other personal harm as a result of talking to a journalist, they may be less willing to talk to the media.
Status around the world
In Africa, the African Commission on Human and Peoples' Rights has adopted a Declaration of Principles on Freedom of Expression in Africa which includes a right to protection of sources under Principle XV.
In Europe, the European Court of Human Rights stated in the 1996 case of Goodwin v. United Kingdom that "[p]rotection 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." The Court concluded that absent "an overriding requirement in the public interest", an order to disclose sources would violate the guarantee of free expression in Article 10 of the European Convention on Human Rights.
In the wake of Goodwin, the Council of Europe's Committee of Ministers issued a Recommendation to its member states on how to implement the protection of sources in their domestic legislation. The Organization for Security and Co-operation in Europe has also called on states to respect the right.
Bulgaria, Poland, and Romania
In Bulgaria, Poland, and Romania unauthorized access to information by government entities were identified in several cases. In those political regions, policies such as mandatory registration of pre-paid SIM mobile phone cards and government access to CCTV make hacking tools and surveillance a lot easier.
In the Netherlands, a 2006 case ruled that in cases of minimal national security interest do not supersede source confidentiality. Bart Mos and Joost de Haas, of the Dutch daily De Telegraaf. In an article in January 2006, the two journalists alleged the existence of a leak in the Dutch secret services and quoted from what they claimed was an official dossier on Mink Kok, a notorious criminal. They further alleged that the dossier in question had fallen into the hands of Kok himself. A subsequent police investigation led to the prosecution of Paul H., an agent accused of selling the file in question. Upon motions by the prosecution and the defence, the investigative judge in the case ordered the disclosure of the source for the news story, on the grounds that it was necessary to safeguard national security and ensure a fair trial for H. The two journalists were subsequently detained for refusing to comply with the disclosure order, but were released on appeal after three days, on November 30. The Hague district court considered that the national security interest served by the order was minor and should not prevail over the protection of sources.
North and South America
In the Americas, protection of sources has been recognized in the Inter-American Declaration of Principles on Freedom of Expression, which states in Principle 8 that "every social communicator has the right to keep his/her source of information, notes, personal and professional archives confidential."
In the United States, unlike doctor-patient or lawyer-client confidentiality, reporters are not afforded a similar legal shield. Communications between reporters and sources have been used by the FBI and other law enforcement agencies as an avenue to information about specific individuals or groups related to pending criminal investigations.
Branzburg v. Hayes
In the 1971 case of Branzburg v. Hayes the court ruled that reporter's privilege was not guaranteed by the First Amendment, but the publicity surrounding the case helped introduce the concept of reporter's privilege into public discussion. As a result of the case, Branzburg, a Kentucky reporter, was forced to testify about his sources and story to a grand jury.
Tracy v. Missoula
A University of Montana student, Linda Tracy, was issued a subpoena for video she took of a violent encounter between police officers and a group of residents.[when?] The case, which was ultimately dismissed, involved attaining unedited footage of the encounter which part of was used in a documentary Linda Tracy made as for an undergraduate journalism class. Although she won the case, her status as a real journalist was called into question. Even with the victory, the court did not specifically address if protections and privacy extended to student journalists, but because of the nature of her intent and the project she could not be coerced to releasing the footage. The case helped help further battles in student journalism and press freedoms at an educational level.
Electronics Communications and Privacy Act
The Electronic Communications Privacy Act passed in 1986 and protects bank transactions, telephone digits, and other information. The act also encompasses what organizations must provide to law enforcement with a subpoena, such as name, address, durations of services used, type of device used, and source of payment. This is known as “required disclosure” policies. It later included provisions to prohibit access to stored electronic devices.
Former CIA employee Edward Snowden further impacted the relationship between journalism, sources, and privacy. Snowden's actions as a whistleblower at the National Security Agency drew attention to the extent of US government surveillance operations. Surveillance by network administrators may include being able to view how many times a journalist or source visits a website per day, the information they are reading or viewing, and online applications they utilize.
In Mexico, it is reported that the government there has spent $300 million during one year to surveil and gather information from the population with specific interest in journalists to get access to their texts, phone calls, and emails.
More schools of journalism are also beginning to include data and source protection and privacy into their curriculum.
- Senior Administration Official
- Shield laws in the United States
- Barack Obama on mass surveillance
- Julian Assange
- The Insider (film)
- Liptak, Adam (February 11, 2012). "A High-Tech War on Leaks". New York Times. Retrieved February 14, 2012.
- Abramowicz, David. 2008. “Calculating the Public Interest in Protecting Journalists' Confidential Sources.” Columbia Journalism Review 108(8):1949–90. Retrieved March 1, 2019 (www.jstor.org/stable/40041814)
- Kitrosser, Heidi (2015-03-15). "Leak Prosecutions and the First Amendment: New Developments and a Closer Look at the Feasibility of Protecting Leakers". William & Mary Law Review. 56 (4): 1221. ISSN 0043-5589.
- Declaration of Principles on Freedom of Expression in Africa
- European Court of Human Rights decision in Goodwin v. UK
- "European Convention on Human Rights and its Five Protocols".
- Recommendation No. R (2000)7 of the Committee of Ministers to Member States on the right of journalists not to disclose their sources of information
- "Vienna Follow-up Meeting CONCLUDING DOCUMENT".
- Glowacka, Dorota; Siemaszko, Konrad; Smtek, Joanna; Warso, Zuzanna (2018-06-01). "Protecting journalistic sources against contemporary means of surveillance". Northern Lights: Film & Media Studies Yearbook. 16 (1): 97–111. doi:10.1386/nl.16.1.97_1. ISSN 1601-829X.
- 'Dutch court releases 2 reporters jailed for refusing to reveal their sources', International Herald Tribune, November 30, 2006[verification needed]
- Inter-American Declaration of Principles on Freedom of Expression
- Koningisor, Christina (2018-03-01). "The De Facto Reporter's Privilege". The Yale Law Journal. 127 (5): 11–76. ISSN 0044-0094.
- Dee, Juliet Lushbough. 2010. Free Speech Yearbook: The Under Privileged Journalism Students. Vol. 1. Washington, D.C.: National Communication Association. Retrieved (https://libproxy.berkeley.edu/login?qurl=http://search.ebscohost.com/login.aspx?direct=true&db=eue&AN=67051538&site=eds-live).
- McGregor, Susan. 2014. “DIGITAL SECURITY AND SOURCE PROTECTION FOR JOURNALISTS.” Tow Center for Digital Journalism A Tow/Knight.pp. 03–88. Retrieved (https://academiccommons.columbia.edu/doi/10.7916/D89P3D4M).
- Kleberg, C. F. (2015), The Death of Source Protection? Protecting Journalists’ Source in a Post-Snowden Age, London: LSE Polis. http://www.lse.ac.uk/media@lse/documents/Death-of-Source-Protection-Carl-Fridh-Kleberg.pdf
- Silkie Carlo and Arjen Kamphuis. 2014. “Information Security for Investigative Journalists.” Centre for Investigative Journalism 1(21). Pp 1-97. Retrieved (https://files.gendo.ch/Books/InfoSec_for_Journalists_V1.21.pdf).
- Berret, Charles. 2016. “How SecureDrop Helps CPJ Protect Journalists.” Tow Center for Digital Journalism A Tow/Knight . pp. 03-77 Retrieved (https://academiccommons.columbia.edu/doi/10.7916/D84178B2).
- Steele, Shari. "Tor at the Heart: GlobaLeaks". Tor Blog. Retrieved 3 January 2017.
- Silencing Sources: An International Survey of Protections and Threats to Journalists’ Sources. Global survey of source protection laws by Privacy International, 2007.
- ECtHR case law factsheet on the protection of journalistic sources
- Model Brief on the Protection of Journalists' Sources by Privacy International 2009. Creative Commons Non-Commercial Use
- Amicus Curiae brief in Sanoma Uitgevers B.V. v the Netherlands, providing an overview of International and European domestic law on protection of sources - the Open Society Justice Initiative, the Committee to Protect Journalists, the Media Legal Defence Initiative, ARTICLE 19, and the Guardian News and Media Limited, December 2009.
- Infosec for Investigative Journalists, version 2016 by Silkie Carlo and Arjen Kamphuis