Protection of sources
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. 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. As a result, problems such as corruption or crime might go undetected and unchallenged, to the ultimate detriment of society as a whole. In spite of any such legal protections, the pervasive use of traceable electronic communications by journalists and their sources provides governments with a tool to determine the origin of information. In the United States, the federal government legally contends that no such protection exists for journalists.
A famous instance of the use of an anonymous source is the series of articles by Washington Post 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. 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". In 2005 W. Mark Felt, who at the time had been Associate Director of the US Federal Bureau of Investigation, revealed that he was "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, discussed classified cables provided to them by Wikileaks over a non-encrypted 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.
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 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.
- Liptak, Adam (February 11, 2012). "A High-Tech War on Leaks". New York Times. Retrieved February 14, 2012.
- Aftergood, Steven (February 29, 2012). "There is No Reporter’s Privilege, Leak Prosecutors Insist". Federation of American Scientists Secrecy news. Retrieved February 29, 2012.
- Harris, Shane (May 21, 2013). "Timeline: Leak Investigations That Have Ensnared Journalists". The Washingtonian. Retrieved May 25, 2013.
- 'Dutch court releases 2 reporters jailed for refusing to reveal their sources' - International Herald Tribune, November 30, 2006
- Soghoian, Christopher (October 27, 2011). "When Secrets Aren’t Safe With Journalists". The New York Times. Retrieved October 27, 2011.
- 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".
- Inter-American Declaration of Principles on Freedom of Expression
- Declaration of Principles on Freedom of Expression in Africa
- 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.