Africa 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.
Legal framework Article 9 of the
African Charter of Human Rights gives every person the right to receive information and express and disseminate opinions. The 2002 Declaration of Principles on Freedom of Expression in Africa, released by the
African Commission on Human and People's Rights, provided guidelines for
member states of the African Union on protection of sources: "XV Protection of Sources and other journalistic material Media practitioners shall not be required to reveal confidential sources of information or to disclose other material held for journalistic purposes except in accordance with the following principles: • The identity of the source is necessary for the investigation or prosecution of a serious crime, or the defense of a person accused of a criminal offense; • The information or similar information leading to the same result cannot be obtained elsewhere; • The
public interest in disclosure outweighs the harm to freedom of expression; • And disclosure has been ordered by a court, after a full hearing." Noteworthy developments since 2007: • April 2013 - Model Law on Access to Information in Africa by the Special Rapporteur on Freedom of Expression and Access to Information at the
African Commission on Human and People's Rights was circulated. An information officer may refuse a request if the information: "(c) Consists of confidential communication between a journalist and her or his source". • May 2015 -
East African Court of Justice (EAJC) judgement on Burundi Press Law (Burundian journalists' union v the Attorney General of the Republic of Burundi, Reference No.7 of 2013). In this judgement, the EAJC ruled Articles 19 & 20 of Burundi's 2013 Press Law violated democratic principles and should be repealed.
Asia and the Pacific The
Association of Southeast Asian Nations (ASEAN) adopted a Human Rights Declaration in November 2012 with general provisions for freedom of expression and privacy (ASEAN 2012). Reservations have been voiced regarding the wording of provisions on human rights and fundamental freedoms in relation to political, economic and cultural systems and the Declaration's provisions on "balancing" rights with individual duties as well as an absence of reference that legitimate restrictions of rights must be provided by law and conform to strict tests of necessity and proportionality In 2007, Banisar noted that: "A major recent concern in the region is the adoption of new
anti-terrorism laws that allow for access to records and oblige assistance. There are also problems in many countries with searches of
newsrooms and with broadly defined
state secrets acts which criminalize journalists who publish leaked information". 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. "The recognition of protection of journalistic sources is fairly well established in Europe both at the regional and domestic levels. For the most part, the protections seem to be respected by authorities...and direct demands to [expose] sources seem more the exception than the common practice". Banisar noted: "...There are still significant problems. Many of the national laws are limited in scope, or in the types of journalists that they protect. The protections are being bypassed in many countries by the use of searches of newsrooms and through increasing use of surveillance. There has also been an increase in the use of criminal sanctions against journalists, especially under national security grounds for receiving information from sources." Since then, European organizations and law-making bodies have made significant attempts at a regional level to identify the risks posed to source protection in the changing digital environment, and to mitigate these risks.
European Court of Human Rights and European Union Court of Justice • November 2007:
European Court of Human Rights (ECtHR) - Tillack v Belgium (20477/05) involved a leak investigation targeting an investigative journalist. The ECtHRs judgment concluded that the authorities acted disproportionately and breached the journalist's right to freedom of expression enshrined in Article 10 of the
European Convention on Human Rights. • February 2008: European Court of Human Rights (ECtHR) Guja v. Moldova (14277/04) This judgement found in favour of Jacob Guja who had served as a
whistleblower to a newspaper regarding cases of alleged political interference with the justice process. • December 2009: European Court of Human Rights (ECtHR)
Financial Times ltd and others v. The United Kingdom (821/03). The Court ruled that the Financial Times, The Guardian,
The Times,
The Independent and
Reuters were right to protect their sources by rejecting a United Kingdom High Court order for them to turn over leaked documents connected to a takeover bid involving a
brewing company. • September 2010: European Court of Human Rights (ECtHR), Grand Chamber Appeal—Sanoma Uitgevers B.V. v
The Netherlands. The ECtHR declared illegal the seizure by the Dutch police of a journalist's CD of photographs, which identified confidential sources. • November 2012: European Court of Human Rights (ECtHR) Telegraaf Media Nederland Landelijke Media b.v. and others v. the Netherlands (Application no. 39315/06) The complaint in this case was brought by a Dutch newspaper and two of its journalists. The journalists had been under investigation after publishing stories in
De Telegraaf about the circulation of state secrets, in the form of documents from the Netherlands' secret service (AIVD). The Court found that the journalists' rights under both Articles 8 and 10 of the European Convention on Human Rights had been violated. • April 2014: European Union Court of Justice judgement (Ireland Data Retention Directive). The Court observed, in its judgment declaring the
Data Retention Directive invalid, that communications metadata "taken as a whole may allow very precise conclusions to be drawn concerning the private lives of the persons whose data has been retained" (Digital Rights Ireland Ltd C-293/12 v Minister for Communications et al. Ireland, 8 April 2014, Directive 2006/24/EC). • May 2014 Stichting Ostade Blade v The Netherlands in the ECtHR (Application no. 8406/06). The Court rejected a Dutch magazine's application against a police raid under Article 10 of the European Convention on Human Rights. This judgement demonstrates the narrow circumstances in which source protection laws can be legitimately over-ridden in the public interest.
Council of Europe (COE) • September 2007: Guidelines of the Committee of Ministers of the Council of Europe on protecting freedom of expression and information in times of crisis adopted. These guidelines (CoE 2007) recommended that Member States adopt Recommendation No. R (2000)7 (CoE 2000) into law and practice. In March 2000, the Council of Europe's Committee of Ministers had adopted that Recommendation on the "right of journalists not to disclose their sources of information". • 2010: Report on the protection of journalists' sources from the Council of Europe (CoE) Parliamentary Assembly highlighted the need to limit exceptions to legal source protection provisions. • 2011: Council of Europe Human Rights Commission issues discussion paper on Protection of Journalists from Violence (CoE HRC 2011) noting that "the fight against terrorism does not allow the authorities to circumvent this right by going beyond what is permitted [Article 10 of the ECHR and Recommendation R (2000) 7]" • 2011:
Council of Europe Parliamentary Assembly adopted Recommendation 1950 on the protection of journalists´ sources. (CoE 2011) recommending that the Committee of Ministers call on all their Member States to: legislate for source protection; review their national laws on surveillance,
anti-terrorism,
data retention, and access to telecommunications records; co-operate with journalists' and
media freedom organisations to produce guidelines for prosecutors and police officers and training materials for judges on the right of journalists not to disclose their sources; develop guidelines for public authorities and private service providers concerning the protection of the confidentiality of journalists' sources in the context of the interception or disclosure of
computer data and traffic data of computer network. • 2014 Declaration of the
Committee of Ministers on the protection of journalism and safety of journalists and other media actors adopted: "A favourable environment for public debate requires States to refrain from judicial intimidation by restricting the right of individuals to disclose information of public interest through arbitrary or disproportionate application of the law, in particular the criminal law provisions relating to defamation, national security or terrorism. The arbitrary use of laws creates a chilling effect on the exercise of the right to impart information and ideas, and leads to self-censorship." • January 2015: Council of Europe Committee on Legal Affairs and Human Rights, Report on Mass Surveillance/Resolution and recommendation addressed the implications for journalistic source protection in the context of freedom of expression and access to information. The Resolution included the following statement: "The Parliamentary Assembly is deeply concerned about mass surveillance practices disclosed since June 2013 by journalists to whom a former United States national security insider, Mr.
Edward Snowden, had entrusted a large amount of top secret data establishing the existence of mass surveillance and large-scale intrusion practices hitherto unknown to the general public and even to most political decision-makers." • May 2014: Council of the European Union - "EU Human Rights Guidelines on Freedom of Expression: Online and Offline" included the following statement: "States should protect by law the right of journalists not to disclose their sources in order to ensure that journalists can report on matters in the public interest without their sources fearing retribution. All governments must allow journalists to work in a free and enabling environment in safety and security, without the fear of censorship or restraint."
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.
Netherlands 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."
United States 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. 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.
Edward Snowden 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.
Mexico 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.
Canada Under Canadian law journalists cannot be compelled to identify or disclose information likely to identify a journalistic source, unless a court of competent jurisdiction finds there is no other reasonable way to obtain the information in question, and that the public interest of administrating justice in the case outweighs the public interest of source protection. In 2019, the
Supreme Court of Canada overturned an order that would have required a journalist to disclose the source of her reporting on the
Sponsorship scandal, former cabinet minister
Marc-Yvan Côté had sought the order in a bid to have charges against him stayed, arguing that officials from an anti-corruption police unit had leaked information about the case to the press. The case was remitted back to the
Court of Quebec for further consideration of new facts. == Technology ==