Protection of sources
Encyclopedia
The protection of sources, sometimes also referred to as the confidentiality of sources 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
. Simply put, it means that the authorities, including the courts, cannot compel 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 people would be deterred from coming forward and sharing information of public interests with journalists. As a result, problems such as corruption or crime might go undetected and unchallenged, to the ultimate detriment of society as a whole.
reporters Bob Woodward
and Carl Bernstein
which uncovered the Watergate Scandal
, ultimately leading to the resignation of US President Richard Nixon
. Woodward and Bernstein relied extensively on information provided by someone known to the world only under the nickname Deep Throat
. Only in 2005 did W. Mark Felt
, who at the time had been Associate Director of the US
Federal Bureau of Investigation
, reveal that he was "Deep Throat".
Woodward and Bernstein were not forced to invoke the protection of sources, since the US authorities made no attempt to uncover the identity of "Deep Throat". An example of the legal operation of the right is the case of 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.
In the modern era of telecommunications, journalists' ability to protect their sources increasingly depends on the adequacy of the computer and communications security measures
they employ. In June 2010, Bill Keller
, then the executive editor of The New York Times
, and Alan Rusbridger, editor of The Guardian
newspaper, discussed classified cables provided to them by Wikileaks
over an unencrypted international telephone line. The Times did not have a readily available means of secure telecommunications for dealing with such matters, despite its history of dealing with whistle-blowers in reporting stories like the interception of international calls made by Americans by the National Security Agency
.
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.
In the Americas, protection of sources has been recognised 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 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.
International law
Public international law concerns the structure and conduct of sovereign states; analogous entities, such as the Holy See; and intergovernmental organizations. To a lesser degree, international law also may affect multinational corporations and individuals, an impact increasingly evolving beyond...
. Simply put, it means that the authorities, including the courts, cannot compel 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 people would be deterred from coming forward and sharing information of public interests with journalists. As a result, problems such as corruption or crime might go undetected and unchallenged, to the ultimate detriment of society as a whole.
Examples
A famous instance of the use of an anonymous source is the series of articles by Washington PostThe Washington Post
The Washington Post is Washington, D.C.'s largest newspaper and its oldest still-existing paper, founded in 1877. Located in the capital of the United States, The Post has a particular emphasis on national politics. D.C., Maryland, and Virginia editions are printed for daily circulation...
reporters Bob Woodward
Bob Woodward
Robert Upshur Woodward is an American investigative journalist and non-fiction author. He has worked for The Washington Post since 1971 as a reporter, and is currently an associate editor of the Post....
and Carl Bernstein
Carl Bernstein
Carl Bernstein is an American investigative journalist who, at The Washington Post, teamed up with Bob Woodward; the two did the majority of the most important news reporting on the Watergate scandal. These scandals led to numerous government investigations, the indictment of a vast number of...
which uncovered the Watergate Scandal
Watergate scandal
The Watergate scandal was a political scandal during the 1970s in the United States resulting from the break-in of the Democratic National Committee headquarters at the Watergate office complex in Washington, D.C., and the Nixon administration's attempted cover-up of its involvement...
, ultimately leading to the resignation of US President Richard Nixon
Richard Nixon
Richard Milhous Nixon was the 37th President of the United States, serving from 1969 to 1974. The only president to resign the office, Nixon had previously served as a US representative and senator from California and as the 36th Vice President of the United States from 1953 to 1961 under...
. Woodward and Bernstein relied extensively on information provided by someone known to the world only under the nickname Deep Throat
Deep Throat
Deep Throat is the pseudonym given to the secret informant who provided information to Bob Woodward of The Washington Post in 1972 about the involvement of United States President Richard Nixon's administration in what came to be known as the Watergate scandal...
. Only in 2005 did W. Mark Felt
W. Mark Felt
William Mark Felt, Sr. was an agent of the Federal Bureau of Investigation , who retired in 1973 as the Bureau's Associate Director...
, who at the time had been Associate Director of the US
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
Federal Bureau of Investigation
Federal Bureau of Investigation
The Federal Bureau of Investigation is an agency of the United States Department of Justice that serves as both a federal criminal investigative body and an internal intelligence agency . The FBI has investigative jurisdiction over violations of more than 200 categories of federal crime...
, reveal that he was "Deep Throat".
Woodward and Bernstein were not forced to invoke the protection of sources, since the US authorities made no attempt to uncover the identity of "Deep Throat". An example of the legal operation of the right is the case of Bart Mos and Joost de Haas, of the Dutch daily De Telegraaf
De Telegraaf
De Telegraaf is the largest Dutch daily morning newspaper, with a daily circulation of approximately . De Telegraaf is based in Amsterdam...
. In an article in January 2006, the two journalists alleged the existence of a leak
News leak
A news leak is a disclosure of embargoed information in advance of its official release, or the unsanctioned release of confidential information.-Types of news leaks:...
in the Dutch secret services
Military Intelligence and Security Service Netherlands
Militaire Inlichtingen- en Veiligheidsdienst is the Military Intelligence and Security Service of the Netherlands. It was formerly known as the Militaire Inlichtingendienst .-History:...
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
National security
National security is the requirement to maintain the survival of the state through the use of economic, diplomacy, power projection and political power. The concept developed mostly in the United States of America after World War II...
and ensure a fair trial
Fair Trial
Fair Trial was a British Thoroughbred racehorse and Champion sire. He was bred and raced by John Arthur Dewar who also bred and raced Tudor Minstrel....
for H. The two journalists were subsequently detained for refusing to comply with the disclosure order, but were released on appeal
Appeal
An appeal is a petition for review of a case that has been decided by a court of law. The petition is made to a higher court for the purpose of overturning the lower court's decision....
after three days, on November 30. The Hague
The Hague
The Hague is the capital city of the province of South Holland in the Netherlands. With a population of 500,000 inhabitants , it is the third largest city of the Netherlands, after Amsterdam and Rotterdam...
district court considered that the national security interest served by the order was minor and should not prevail over the protection of sources.
In the modern era of telecommunications, journalists' ability to protect their sources increasingly depends on the adequacy of the computer and communications security measures
Information security
Information security means protecting information and information systems from unauthorized access, use, disclosure, disruption, modification, perusal, inspection, recording or destruction....
they employ. In June 2010, Bill Keller
Bill Keller
Bill Keller is a writer for the The New York Times, of which Keller was the executive editor from July 2003 until September 2011. On June 2, 2011, Keller announced that he would step down from the position to become a full-time writer...
, then the executive editor of The New York Times
The New York Times
The New York Times is an American daily newspaper founded and continuously published in New York City since 1851. The New York Times has won 106 Pulitzer Prizes, the most of any news organization...
, and Alan Rusbridger, editor of The Guardian
The Guardian
The Guardian, formerly known as The Manchester Guardian , is a British national daily newspaper in the Berliner format...
newspaper, discussed classified cables provided to them by Wikileaks
Wikileaks
WikiLeaks is an international self-described not-for-profit organisation that publishes submissions of private, secret, and classified media from anonymous news sources, news leaks, and whistleblowers. Its website, launched in 2006 under The Sunshine Press organisation, claimed a database of more...
over an unencrypted international telephone line. The Times did not have a readily available means of secure telecommunications for dealing with such matters, despite its history of dealing with whistle-blowers in reporting stories like the interception of international calls made by Americans by the National Security Agency
NSA warrantless surveillance controversy
The NSA warrantless surveillance controversy concerns surveillance of persons within the United States during the collection of foreign intelligence by the U.S. National Security Agency as part of the war on terror...
.
International law
Various authorities in international law point to a recognition that a right to protection of sources is implicit in the right to freedom of expression.In Europe, the European Court of Human Rights
European Court of Human Rights
The European Court of Human Rights in Strasbourg is a supra-national court established by the European Convention on Human Rights and hears complaints that a contracting state has violated the human rights enshrined in the Convention and its protocols. Complaints can be brought by individuals or...
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
European Convention on Human Rights
The Convention for the Protection of Human Rights and Fundamental Freedoms is an international treaty to protect human rights and fundamental freedoms in Europe. Drafted in 1950 by the then newly formed Council of Europe, the convention entered into force on 3 September 1953...
.
In the wake of Goodwin, the Council of Europe
Council of Europe
The Council of Europe is an international organisation promoting co-operation between all countries of Europe in the areas of legal standards, human rights, democratic development, the rule of law and cultural co-operation...
'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
Organization for Security and Co-operation in Europe
The Organization for Security and Co-operation in Europe is the world's largest security-oriented intergovernmental organization. Its mandate includes issues such as arms control, human rights, freedom of the press and fair elections...
has also called on states to respect the right.
In the Americas, protection of sources has been recognised 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 Africa, the African Commission on Human and Peoples' Rights
African Commission on Human and Peoples' Rights
The African Commission on Human and Peoples' Rights is a quasi-judicial body tasked with promoting and protecting human rights and collective rights throughout the African continent as well as interpreting the African Charter on Human and Peoples' Rights and considering individual complaints of...
has adopted a Declaration of Principles on Freedom of Expression in Africa which includes a right to protection of sources under Principle XV.
See also
- ConfidentialityConfidentialityConfidentiality is an ethical principle associated with several professions . In ethics, and in law and alternative forms of legal resolution such as mediation, some types of communication between a person and one of these professionals are "privileged" and may not be discussed or divulged to...
- Mental reservationDoctrine of mental reservationThe doctrine of mental reservation, or the doctrine of mental equivocation, was a special branch of casuistry developed in the late Middle Ages and the Renaissance, and most often associated with the Jesuits.- Secular use :...
(a form of deception which does not involves outright lying) - Shield laws in the United States
External links
- ECtHR case law factsheet on the protection of journalistic sources
- Amicus Curiae brief in Goodwin v. United Kingdom, providing an overview of European domestic law on protection of sources - ARTICLE 19ARTICLE 19ARTICLE 19 is a London-based human rights organisation with a specific mandate and focus on the defence and promotion of freedom of expression and freedom of information worldwide...
and Interights