Journalist Confidentiality
 

An issue which has received a great deal of attention recently is whether journalists may be compelled to reveal confidential information before a court of law. Two cases from Southern Africa have recently illustrated the importance of confidentiality to journalists.

In the Nyarota case, disclosure of the identity of a number of sources was sought from a Zimbabwean newspaper in the context of a civil defamation case brought by a cabinet minister in respect of an article about corruption (Shamuyarira v Zimbabwe Newspapers (1980) Ltd T/A The Chronicle and Geoffrey Nyarota, 1994(1) ZLR 445 (HC)). The High Court ultimately held that Nyarota was not required to reveal his sources but the consequence of protecting them was that he lost the defamation case.

In South Africa, application of the infamous Section 205 of the Criminal Procedure Act in the context of the murder of Rashaad Staggie has revived the debate about journalist confidentiality. In the apartheid era this provision, which compels disclosure by anyone likely to have information relating to a criminal offence, even when it is not known who committed the offence, was used to harass the media and on occasion even imprison journalists who refused to reveal confidential sources.

Although the subpoenas served on the journalists in the Staggie case were withdrawn after media protest, the incident illustrates the need for proper protection for journalist confidentiality.

The legitimacy of compelling journalists to disclose information, particularly regarding sources, is clearly suspect under international human rights law. A 1993 resolution of the European Parliament emphasized the importance of a right of confidentiality for journalists and called on Member States to protect this right by enacting legislation (Resolution on Confidentiality of Journalists’ Sources, adopted in 1993, A3-0434/93, in The Official Journal of the European Communities, No. C44/34).

In the recent Goodwin case, the European Court of Human Rights (ECtHR) held that freedom of expression protects journalists from mandatory source disclosure except in very narrow circumstances where there is an overriding public interest in the information (Goodwin v UK, 22 EHRR 123 (1996), at para 39).
 

Are journalists special?

Journalists are not a special breed of citizen who benefit from human rights in ways that ordinary people do not. As was noted in Cohen v Cowles Media Co, the press is not free to disregard laws of general application, such as those providing for taxation, simply because they incidentally restrict the flow of information (111 S. Ct. 2513 (1991)). Why then should journalists be allowed to conceal information that ordinary citizens would be required to divulge?

The answer lies in the special role of the media relating to freedom of expression. The ECtHR has on numerous occasions held that the media have a special role to play in imparting information and ideas on matters of public interest to the public. In addition, the media play a vital role as ‘public watchdog’. This role has also been affirmed by the Inter-American Court of Human Rights (IACtHR).  Furthermore, although this special role is carried on by the media, the right it pertains to has a universal dimension based on the public's right to receive information.
This aspect of the right is explicitly provided for in Article 19 of the ICCPR and Article 13 of the IACHR. As the IACtHR stated: "[Freedom of expression] has a double dimension, individual and collective." Unless the media can operate freely, without interference of either a direct or indirect nature, the primary source of information for the public will be impaired and their right to receive information obstructed. It is this circumstance, and not the distinctive status of journalists as individuals, that underpins special protection for journalists under freedom of expression.

It is widely acknowledged that protection of the confidentiality of sources is central to press freedom. In Goodwin, the UK did not even bother to contest that issue, relying instead on an argument that the interference was justified by other more important public considerations. In that case, the Court stated: "Protection of journalistic sources is one of the basic conditions for press freedom" (at para 39).

The importance of sources to media freedom has been described by the Canadian Supreme Court as ‘self-evident’. This has been reiterated by numerous courts from around the world. Although compelling disclosure of confidential information which does not reveal the identity of sources is less intrusive, it also interferes with freedom of expression inasmuch as it hinders media access to information.
 

International Law

Several international human rights instruments guarantee both the right to impart and to receive information. Although this dual protection is not explicitly provided for in the European and African human rights treaties, the ECtHR has held that the ECHR guarantee of freedom of expression includes the right to receive information and it may safely be assumed that the same is true of the African Charter on Human and Peoples’ Rights.

The media are thus protected under international instruments both as purveyors of information and because they play a key role in the public's right to receive information. Since, as noted above, media freedom depends in important ways on journalist confidentiality, freedom of expression guarantees journalists the right to refuse to divulge confidential information.

The only international case to have explicitly dealt with journalist confidentiality is Goodwin. In that case, a journalist in the UK received information about the financial status of a company, Tetra, from a confidential source. Tetra, upon hearing of this, obtained an injunction prohibiting publication and also a High Court order requiring the journalist to reveal his source.

When the latter refused to do so he was charged under Article 10 of the Contempt of Court Act which provides:
 

No court may require a person to disclose ... the source of information contained in the 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.

The ECtHR agreed with the Commission that there had been an interference with freedom of expression, in particular because the disclosure order could be expected to have a chilling effect on the readiness of people to give information to journalists. In any case the UK did not even bother to contest the point.

The Court held that the disclosure order met two of the three conditions established by Article 10 of the ECHR for restrictions on freedom of expression. It was sufficiently precise given the area under consideration to satisfy the "prescribed by law" requirement and the aim of protecting the rights of the company was a legitimate one. The order, however, failed the third part of the test, the requirement that any restriction be necessary in a democratic society.

The Court held that an order for source disclosure could be compatible with freedom of expression only if "justified by an overriding requirement in the public interest" (para 39). This had not been established, in part because Tetra had already obtained a ban on publication.

Tetra's residual interests, in particular the threat that the source would communicate directly with competitors and the desire to identify a disloyal employee, were insufficient "to outweigh the vital public interest in the protection of the applicant journalist's source" (para 45).  The required proportionality between the aim pursued and the means deployed to achieve that aim was thus lacking.

The ECtHR decision may be read as invalidating the application of Article 10 of the Contempt of Court Act to the facts of the case rather than the provision as such. Article 10 broadly protects journalists’ sources subject to four exceptions, all of which correspond to legitimate aims under the ECHR. It was the failure of the national courts to interpret the term ‘necessary’ in Article 10 as requiring proportionality between the goal of protecting sources and the interest being alleged that resulted in the Goodwin holding.

A number of general principles regarding journalist confidentiality may be drawn from international human rights treaties and the Goodwin case. First, protection of sources and other confidential information clearly engages freedom of expression. This means that any requirement to divulge information must be based on the limited and specific exceptions to freedom of expression recognised under international human rights law. Second, an important rationale for this protection is the right of the public to receive information and ideas. Thus, anyone who is disseminating material of significant public interest is protected. Third, any requirement to divulge information must be necessary in a democratic society. Given the importance of media freedom, this requires an overriding public interest in the information. Only information which is highly relevant and cannot be obtained elsewhere could satisfy this test. In addition, the benefit of disclosure must outweigh any harm to freedom of expression from disclosure.

The Goodwin case involved a civil trial where the balance was between the general interest in freedom of expression and the ability of an individual company to protect its commercial interests. Although it is a matter of some public concern that individuals be able to use the law to protect their interests, it will be rare that this is of sufficient weight to override the freedom of expression interest in protecting sources. It is noteworthy that the House of Lords, deciding Goodwin's case at the national level, focused on the risk to the livelihood of the Tetra's employees, suggesting only a broad social interest could justify forced disclosure of sources.

In a criminal case the analysis would be slightly different, requiring a balance between the interest in convicting a particular wrongdoer and the general public interest in freedom of the media. The information would need to be of seminal importance and the case serious for disclosure to prevail. Where a public order or national security interest was in the balance the calculation would again be different. It is worth noting the warning by the IACtHR that public order may equally be used to argue in favour of freedom of expression as against it; over the longer term order can only be guaranteed in a free society where rights are respected.
 

Conclusions

International human rights law supports the following conclusions regarding journalist confidentiality:

1. Journalist confidentiality is protected by freedom of expression. There is thus a presumption that journalists should not be forced to disclose information.

2. The guarantee of confidentiality applies to both professional journalists and material produced for regular publications or broadcasts, particularly where the subject matter is of general public interest.

3. Restrictions on the protection of journalist confidentiality may only be justified on the following grounds: national security, public order, prevention of crime or the rights of others.

4. Any restriction must, in addition to being based on a legitimate ground, satisfy the following three part test: i) the information sought cannot be obtained elsewhere; ii) the information must be highly relevant for the purpose for which it is sought; iii) public interest in the information significantly outweighs the harm to freedom of expression of the disclosure.
 

Toby Mendel
Head of Law Programme
ARTICLE 19