Between privilege and subpoena: the protection of journalists’ confidential sources

(Ecquid Novi African Media Studies 2006 27 (2): 111 – 134.)

Abstract

 Recent events in South Africa and elsewhere have focused attention on the position of journalists faced with legal action aimed at discovering the identity of confidential sources. It is widely accepted in the journalism community that journalists have an ethical obligation to protect the identity of confidential sources. The obligation derives from the central role that journalism plays in democracy, yet in South Africa it may bring journalists into conflict with legal measures aimed at forcing disclosure, such as Section 205 of the Criminal Procedure Act. Journalists may find themselves in a position where they have to choose between acting ethically or upholding the law. This article explores the rationale for the protection of confidential sources and compares the normative ethics and jurisprudence relating to protection of sources in various jurisdictions, including South Africa. It examines processes currently under way to establish legal protection of journalists against forced disclosure, considers a number of options that may be pursued. It concludes that any such measure should cover both criminal and civil proceedings, and suggests that the answer may lie in the proper interpretation of the right to freedom of expression to accord a qualified privilege to journalists.

 Keywords: Confidential sources, Criminal Procedure Act, democracy, ethics, freedom of expression, journalism, media law, media freedom, privilege, South Africa, subpoena, freedom of expression.

1.         Introduction

The duty to protect confidential sources of information “is a basic tenet of journalistic ethics” (Kruger, 2004: 190). It is a near-universal feature of journalism ethics codes in South Africa (Retief, 2002), Europe (Ronning & Kasoma, 2002) and the United States (Son, 2002). Although there is wide acceptance of the ethical obligation to protect sources who have been promised confidentiality, the question of whether this obligation should be recognised in law is more controversial. It is embodied in some form in jurisdictions as diverse and far-flung as Mozambique, Sweden, and all but one state of the U.S.; in others, including South Africa, legal protection is not yet established.

            Recent events in South Africa[1] and elsewhere[2] have drawn attention to the position of journalists with legal action aimed at revealing the identity of their sources. These events occurred at a time when the South African National Editors Forum and the Department of Justice are engaged in negotiations about an amendment to the Criminal Procedure Act (Act 51 of 1977), the main weapon in the state’s armoury to force disclosure of sources. At issue are the rights that journalists have to protect the identity of their sources when faced with a subpoena seeking disclosure, or, put differently, whether the law accords them a privilege when someone seeks disclosure of source identity. This is not a simple issue. It requires, as Berger (2004:1) points out, making “fine, but important distinctions between sub-themes”. Why should confidential sources be protected, and from whom? How should they be protected, and by whom?

            That confidential sources should be protected is not self-evident. Many commentators from the journalism field (Scardino, 2005; Kunkel, 2005; Retief, 2002) have noted that overuse of confidential or anonymous sources undermines the credibility of the media; some (Scardino, 2005; Boyd-Barrett, 2004; Neuharth, 2004) argue that they should not be used at all, or only in exceptional circumstances, pointing to evidence of their use to promote hidden agendas, disseminate propaganda or disguise lazy reporting. While journalists argue that forced disclosure undermines their constitutional function of keeping the public informed, governments counter that protection of source confidentiality is less important than assembling evidence in legal disputes. The argument in favour of protecting confidential sources, therefore, needs to take into account competing interests, and should be rooted in the role of the media in a democracy (Berger, 2004). It is often assumed that the threat to disclose confidential sources comes from government. Yet, as recent events in South Africa illustrate[3], private companies and individuals may also seek legal means to force disclosure of sources if they believe the information is needed to exercise their rights. In the U.S., the vast majority of subpoenas served on journalists emanate from private companies and individuals (Bates, 2000). That has implications for the way in which we seek to protect confidential sources, and who should do the protecting.           

In exploring those issues, this article attempts to answer two questions: should the law protect the confidentiality of journalists’ confidential sources; and if so, what form should that protection take? I start by considering the rationale for the principle of protection of confidential sources. I then examine how other jurisdictions have dealt with the issue, before looking at the situation in South Africa. In conclusion, I propose and weigh various options that may be considered.

2.         Rationale for the protection of confidential sources in journalism

The obligation to protect confidential sources derives from the central role of the media in the democratic process. This role is linked to three important rights enshrined in South Africa’s Constitution: freedom of expression, which is a right of each citizen; freedom of the press and other media, which recognises particular institutional rights; the right of citizens to access information. None of these rights is absolute, and each needs to be weighed against other rights such as those of dignity and privacy. Even so, these particular rights are generally deemed to be wholly necessary conditions of democracy in South Africa, and this significant status has to be kept prominently in mind regarding the possibility of any curtailments or limitations. These rights are in many ways interdependent, and may also be analysed with regard to their distinctive relevance for journalism.

Freedom of expression, as South Africa’s Constitutional Court has recognised, is fundamental to democracy (see, for example, South African National Defence Union v Minister of Defence and Another 1999 (4) SA 469 (CC), S v Mamabolo 2001 (3) SA 409 (CC)). The Constitution explicitly includes “freedom of the press and other media” and also the freedom to receive and impart information as components of the fundamental right to freedom of expression. The media, according to the Constitutional Court in Khumalo & Others v Holomisa (5) SA 401 (CC), are not only bearers of the right to freedom of expression, but have a constitutional obligation to ensure that citizens have access to the information they need to participate in democratic processes. The Constitution’s guarantee of freedom to the media as an institution represents a recognition that the media amplify the individual right of freedom of expression, as well as the right to access information. This is due to the mass communication character of the media, which enables the individual rights to be taken to a shared social plane. In short, while freedom of expression exists independently of freedom of the media, this institutional freedom rests on – and helps realise – freedom of expression. While the rights to freedom of expression, and to information, need to be cherished, so too does freedom of the media. The cross-fertilisation of these rights in enabling journalism to serve as a pillar of democracy is the theme of much jurisprudence.  

Thus, in Khumalo & Others v Holomisa, cited above, Justice O’Regan wrote that without freedom of expression, “the ability of citizens to make responsible political decisions and to participate effectively in public life is stifled” (Para 21).The media are “key agents” in ensuring that citizens’ right to receive information and ideas is respected (Para 22). The ability of citizens to be effective and responsible members of society depends on the manner in which the media carry out their constitutional obligation. Justice O’Regan observed:

In a democratic society, then, the mass media play a role of undeniable importance. They bear an obligation to provide citizens both with information and with a platform for the exchange of ideas which is crucial to the development of a democratic culture. As primary agents of the dissemination of information and ideas, they … have a constitutional duty to act with vigour, courage, integrity and responsibility. The manner in which the media carry out their constitutional mandate will have a significant impact on the development of our democratic society. If the media are scrupulous and reliable in the performance of their constitutional obligations, they will invigorate and strengthen our fledgling democracy. If they vacillate in the performance of their duties, the constitutional goals will be imperilled. (Para 24).

This central role of the mass media in a democracy may be said to have three components: disseminating information, promoting debate, and providing public scrutiny. These will be analysed in turn.

Firstly, the media act as the “eyes and ears of society” (Trengove, 2002). Lord Bingham, in McCartan Turkington Breen v Times Newspapers (2000) 4 AER 913 (HL) 922 B – D, described this role by saying that

In a modern, developed society, it is only a small minority of citizens who can participate directly in the discussions and decisions which shape the public life of that society. The majority can participate only indirectly, by exercising their rights as citizens to vote, express opinions, make representations to the authorities, form pressure groups and so on. But the majority cannot participate in the public life of their society in these ways if they are not alerted to, and informed about, matters which call or may call for consideration and action. It is very largely through the media …that they will be so alerted and informed. The proper functioning of a modern participatory democracy requires that the media be free, active, professional and enquiring. 

Secondly, the news media act as a “marketplace of ideas”. In modern society, the media are often the only forum for public discourse and debate on important issues. Stifling this debate by limiting the flow of information into the public arena would have negative consequences for democracy, and this is especially true in a society which, like South Africa, has recently emerged from an era of censorship and repression of free speech. The Constitutional Court recognised this principle when it said in S v Mamabolo (Para 37) that

…the public interest in the open marketplace of ideas is all the more important to us in this country because our democracy is not yet firmly established and must feel its way. Therefore, we should be particularly astute to outlaw any form of thought control, however respectably dressed.

Thirdly, the media act as a “public watchdog”, parallel to the justice system, to uncover abuses and betrayals of public trust. In the words of Justice Joffe in Government of the Republic of South Africa v “Sunday Times” Newspaper & Another 1995 (2) SA 221 (T), cited with approval by the Constitutional Court in the Holomisa case, “it is the function of the press to ferret out corruption, dishonesty and graft wherever it may occur and to expose the perpetrators” (Para 23). The watchdog role of the media is most often perceived to be in relation to the state, but “corruption, dishonesty and graft” may occur in any sphere of life, including the private sector.

In order to fulfil their mandate of informing the public, acting as a marketplace of ideas, and especially performing the “watchdog” function, journalists sometimes make use of information supplied by sources who, for a variety of reasons, wish to remain anonymous. Investigative journalists, especially, rely on relationships with sources who have access to information and who are willing to divulge the information only on condition that their anonymity is guaranteed.

According to Retief (2002: 118),

(w)ell-informed sources are the basis, the bread and butter, of any journalist’s success. It goes without saying that the protection of these sources is a vital part of that success. (…) The amount of attention that most ethical codes give to this matter testifies to this fact.

 Overholzer (2004) states the principle even more forcefully:

 It’s a cardinal rule of journalism: do not disclose the identity of someone who gives you information in confidence. (…) The benefits flowing to the public from this pact of confidentiality are invaluable … it is incontestable that some information vital to a democratic public will reach it only through the protection of confidentiality.

 In appropriate circumstances, therefore, it is in the interests of society as a whole that journalists must be able to give assurances of protection to the sources of information given in confidence. The use of anonymous sources, according to Retief (2002), is justified when publication of the information is clearly in the public interest; the information cannot be obtained by any other means; and the trustworthiness of the source or information is beyond doubt. The International Press Institute, a body representing editors and publishers worldwide, stated this principle in a resolution adopted in response to the jailing of Washington Post journalist Judith Miller in the U.S. for refusing under subpoena to reveal the identity of a confidential source (International Press Institute, 2005):

 Independent journalism enhances justice by bringing to light information that is important for the citizenry to know and that might otherwise remain hidden. If news media are to serve as the watchdogs of society, they must be able to gather information without fear of punishment for themselves or their sources.

 The professional duty to protect confidential sources is a ubiquitous feature of journalistic ethics codes in South Africa and elsewhere. Retief (2002) has developed a “Universal Code of Ethics” into which he distilled 10 common features from journalistic ethics codes from South Africa and around the world. It includes the duty to “(p)rotect confidential sources unless there is an overriding public interest not to do so”. Helge Ronning (Ronning & Kasoma, 2002: 63) distilled a similar set of eight common features from European codes of journalism ethics. The “duty not to divulge confidential sources” is one of them.

   

The Press Code of Professional Practice of the Press Ombudsman of South Africa, which applies to print media, states in Section 6 that “(a) newspaper has an obligation to protect confidential sources of information”[4]. The Code of Conduct of the South African Union of Journalists states that “(a) journalist shall protect confidential sources of information”. The South African National Editors Forum’s Guidelines on confidential briefings and sources, adopted by the Sanef council in 2004, provide that “whatever commitment a journalist has given a source (in relation to confidentiality) should ethically bind that journalist”. Many South African media companies have adopted ethics codes that contain similar injunctions to protect the confidentiality of courses[5]. The South African Broadcasting Corporation’s Editorial Code of Ethics provides that “(we) shall not disclose confidential sources of information”. The e-tv code of conduct binds its editorial staff to “(u)se all legal means to protect the confidentiality of sources”. The Star’s code of ethics states that its journalists “are bound to protect confidential sources of information”. Die Burger’s ethics code states that “journalists are obliged to protect the sources of confidential information, and may not divulge them to anyone except the editor or the editor’s representative” (our translation). The Mail & Guardian’s Professional Code provides that “(i)f a reporter undertakes to protect the confidentiality of the source, it is expected that this is upheld, no matter what threats or inducements are offered to break the agreement”.

            The duty to protect the confidentiality of sources is widely accepted by journalists throughout Africa. The Botswana Code of Ethics provides that “(w)hen sources are promised confidentiality, that promise shall be honoured, unless released by the source”. The Draft Code of Conduct for Namibian Media states that “(e)very journalist shall observe secrecy regarding any source of information and has a moral obligation to protect sources unless the person who gave him such information authorises the disclosure of his identity”. The Code of Conduct of the Media Council of Zambia provides that “(j)ournalists should respect the confidentiality of sources to whom they have pledged anonymity”. Similar pledges to uphold the confidentiality of sources appear in professional codes of journalistic ethics in Angola, Malawi, the Democratic Republic of Congo, Ghana, Kenya and Tanzania.

            Further afield, the Code of Practice of the British Press Complaints Commission (1991) states that “(j)ournalists have a moral obligation to protect confidential sources of information”. Many U.K. news media incorporate similar injunctions into their own codes of ethics; The Guardian’s Editorial Code (The Guardian, 2005), for instance, states that “(s)ources promised confidentiality must be protected at all costs”. International organisations including the International Federation of Journalists and the International Press Institute also recognise the duty to protect confidential sources of information (Journalism.co.za, 2005; International Press Institute, 2005).

            These are not simply rules on paper. Evidence of the importance journalists attach to the ethical obligation to protect confidential sources is the great lengths to which some journalists have gone, and the prejudice they have suffered, in the observance of this rule. In South Africa, journalists such as John Matisonn of the Sunday Express, Benjamin Pogrund of the Rand Daily Mail, and Thami Mazwai of Sowetan chose imprisonment rather than revealing the identity of their sources or testifying in political trials (Burns, 2001; Nix, 1997). Zimbabwean journalist Mark Chavunduka, editor of the Zimbabwe Standard and recipient of the prestigious Nieman Fellowship in 2000, endured “beatings with planks, booted feet and fists, electric shocks and water suffocation for hours on end” while in detention for nine days after refusing to reveal the source of a report on a plot to topple President Robert Mugabe (Chavunduka, 2001: 77):

It would have been easier, certainly, for me to reveal our sources and ‘simply go home’, as my torturers kept telling me. (…) But by taking that easier route, I’d have violated the professional ethics I’d been taught in journalism school as well as my personal conscience… Revealing their names would have betrayed and endangered our sources.

There are five reasons why the forcible disclosure of journalists’ confidential sources would blunt the effectiveness of the media in fulfilling their mandate of informing citizens in a democracy, acting as a marketplace of ideas, and serving as the public’s watchdog. These are examined in turn.

2.1       The “chilling” effect

The most obvious effect of a subpoena to force the disclosure of journalists’ sources is the likelihood that other sources will be deterred from confiding in journalists for fear of being exposed. Unless potential news sources are confident that their identity will not be forcibly revealed, they will be reluctant to disclose information to journalists. The disclosure of sources under subpoena would therefore have a “chilling effect” on journalists’ ability to develop other sources and gather news. Judith Miller, the New York Times reporter jailed for refusing to divulge a source that disclosed to her the identity of a CIA operative, noticed this “chilling effect” after a subpoena had been served on her: people had become “nervous about talking to somebody who’s at the centre of … a controversy like this”, she commented before being sentenced to an indefinite jail term (Smolkin, 2005). Matt Cooper, a Newsweek reporter subpoenaed in the same investigation as Miller, noticed a similar “chilling effect” on potential sources (Smolkin, 2005). Closer to home, Haffejee (2005: 9) commented on the likely effect if the Mail & Guardian newspaper were forced to disclose the identity of confidential sources:

      

If sources are frightened of exposure and reprisal, they are unlikely to tell journalists what they know. (…) If (our journalists) are compelled to disclose the names of sources to whom they promised confidentiality, their credibility as investigative journalists will be irredeemably damaged. They will no longer be trusted by the public and by potential sources…”

The chilling effect is a real and serious concern for journalists. The relationship between reporters and confidential sources was recognised by the U.S. Supreme Court in Branzburg v Hayes 408 U.S. (Alexander & Cooper, 1997), and has been attested to by many journalists and media scholars (see, for example, Penrod, 2004). Maintaining the confidentiality of sources, writes Penrod (2004: 4), “is essential to journalism”. The author continues:

Without promises of confidentiality, many sources are unwilling to give journalists valuable information … (W)hen the confidentiality is breached, sources fall silent, leaving journalists – and ultimately the public – uninformed.

2.2       Loss of independence

When litigants have access to reporters’ information and source materials, the public may perceive the media as an investigative tool of the litigants instead of an independent entity. This undermines public confidence in the media and restricts journalists’ newsgathering ability. Use of the media as an investigative tool for discovery by civil litigants is common in the U.S., where 38 percent of subpoenas served on news organisations in 1999 related to civil litigation. This “strikes at the very notion of the press as an independent, impartial watchdog” (Dalglish, Leslie & Tannenbaum, 2002). The independence of the media, which is essential for the performance of its watchdog duty, is threatened if journalists are forced to take part in litigation to which they are not a party. It may create a public perception that the media are sympathetic to one side of the litigation, or even worse, taking an active part on behalf of one side.

            This principle has been recognised by South Africa’s High Court in S v Cornelissen; Cornelissen v Zeelie NO en andere 1994 (2) SACR 41 (W), in which Mr Justice Schabort noted that the media have a duty to gather information and to publish it, and that the ability to perform this task is dependent on a relationship of trust between reporters and the public. This case is discussed in more detail later.

It is not the job of the media to conduct investigations on behalf of the state or civil litigants. The “lazy lawyer” phenomenon – “litigation attorneys using journalists as fact chasers for their cases” – has no place journalism or law (Dalglish et al, 2002),

2.3       Burden on time and resources

Paul McMasters, ombudsman at the Freedom Forum’s First Amendment Center (cited in Smolkin, 2005), calls the potential drying up of sources the “premier problem” caused by subpoenas to force disclosure of sources, but cites additional consequences. These include bogging down reporters and editors in dealing with court challenges, thus affecting the ability of the news organisation to gather and disseminate news efficiently.

The burden is especially heavy for small and independent news media, which do not have the resources available to larger news organisations. If a journalist has to respond to a subpoena, testify at a trial, or meet with lawyers, the journalist’s duties have to be covered by another journalist. That has a direct effect on the public’s receipt of news, and therefore threatens to undermine the function of media in a democratic society.

2.4       Intrusion into the editorial process

The use of subpoenas can affect the internal functioning of the press through the “chilling effect” it has on internal decisions about the coverage of news and the publication of stories. The prospect of a subpoena may inhibit the media from newsgathering or disseminating news. Rather than risk being subpoenaed to reveal source, a journalist or newspaper may decide not to publish information. Newspapers may also become averse to using information supplied on condition of confidentiality, ultimately affecting the depth and accuracy of coverage.

A related practical difficulty occurs when journalists destroy unpublished notes or other records if faced with a subpoena, to prevent the record being used to identify a source. This practice may also affect the depth and accuracy of news coverage, undermining the role of the media in a democracy (Dalglish et al, 2002).

2.5       Safety and protection

Compelled disclosure of sources may, in certain circumstances, threaten the safety and wellbeing of journalists and their sources. Sources who provide information on condition of confidentiality may face harassment, prejudice or retaliation from employers or others if their identity is disclosed. Some sources risk their lives by giving information to reporters. Disclosure of their identity, in such cases, may have serious consequences (Dalglish et al, 2002).

Being forced to disclose sources or provide information to prosecuting authorities may also endanger the lives of journalists. This concern was graphically illustrated in 1996, when journalists at the Cape Times and other news media were subpoenaed to hand over photographic and written material relating to the death of Rashaad Staggie, a gang leader. They refused. The subpoenas were later withdrawn after widespread protests from the journalistic profession. Ryland Fisher (2000), then editor of the Cape Times, commented

The situation in Cape Town had become extremely volatile, and journalists had been threatened by gangsters and anti-gang campaigners alike. If newspapers had been seen to be colluding with the police, we could have exposed our journalists to grave danger and undermined the trust they enjoyed in the community.

3.         Counter-arguments

The rationale in the arguments advanced above relies on a public interest principle: the assumption that journalists in a democratic society should have special exemption from disclosing the identity of sources because society at large benefits from such an exemption (Berger, 2004). It assumes that media have an essential function and mandate within a democracy, and that media freedom is exercised on behalf of and to the benefit of society at large.

Against this, however, has to be weighed the public interest in the administration of justice and the maintenance of law and order, as well as the rights of others, such as the rights to privacy, dignity, access to information and due process. The prosecutor who seeks disclosure of a journalist’s source, and the journalist who refuses to comply, both claim to serve the public interest. They are, in the words of Bates (2000: 14), “locked in a struggle for democratic legitimacy”. Similarly, the civil litigant who asks a court to order a journalist to reveal the identity of a source, and the journalist who opposes the application, both claim to be exercising a fundamental right. But no right is absolute: they are limited by the rights of others and by the interests of society.

Bates (2000: 10-13) advances an argument, based on policy considerations, that legal privilege for journalists is undesirable and, indeed, unnecessary. Traditional profession-based privilege not to testify, he argues, is not suited to the media for a number of reasons. While the legal and medical professions are closed, journalism is not. Deciding who qualifies as a journalist, and should be afforded a “reporter’s privilege”, would not always be an easy matter. Traditional privileges, moreover, are governed by “elaborate ethical canons, statutes and case law”. Journalistic ethics codes, by contrast, set broad guidelines which journalists interpret and apply subjectively and ad hoc. Finally, Bates argues, traditional privileges seek to “encourage candour so that the listener can better aid the speaker”. In journalism, the opposite is often true: for the journalist, candour is “a means to an end – getting the story – which, ultimately may or may not benefit the source”. For those reasons, courts and legislatures are unlikely to grant journalists absolute or even partial privilege.

Even so, journalists in practice manage to exercise a great deal of discretion in whether or not to testify, by virtue of their ability to resist such pressures. They are “uniquely able to make their screams of pain heard”, and have “the constitutional means and personal motives to resist encroachments”, Bates argues. In the U.S., therefore, subpoenas of journalists by federal prosecutors have become comparatively rare, and, when journalists resist those subpoenas, courts generally treat them far more leniently than they would treat other held in contempt. Although prosecutors can keep silent witnesses in jail indefinitely, of the 17 journalists jailed for refusing to testify in the U.S. between 1984 and 1998, none was held for longer than a month, and most for less than a day. The “ritual jailing” of journalists for short periods could almost be seen as “a form of fiction in which journalists were granted a de facto privilege by sympathetic judges who were unwilling to diminish their own powers by the creation of a de jure privilege”.

A number of protocols and legal mechanisms have emerged in various jurisdictions to deal with those competing claims, ranging from absolute legal privilege to “soft law” mechanisms such as agreements between journalists and prosecuting authorities. These are discussed below.

4.         Protection of journalists’ confidential sources: comparative jurisprudence

4.1       Africa (excluding South Africa)

The Declaration of Principles on Freedom of Expression in Africa, adopted by the African Commission on Human and Peoples’ Rights in 2002, affirms in its preamble that freedom of expression is a cornerstone of democracy and a means of ensuring respect for all human rights and freedoms (African Commission on Human and Peoples’ Rights, 2002). Although the declaration does not recognise any special rights for journalists or for the media as an institution, Section 15 of the declaration expressly recognises the importance of protecting the confidentiality of journalists’ sources. It states that:

Media practitioners shall not be required to reveal their 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 defence of a person accused of a criminal offence;
  • 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.

 

This position mirrors in some respects the position of the “Stewart” principles in the U.S.(see below), as well as the United Nations Criminal Tribunal, which in 2002 adopted a qualified privilege for war correspondents in regard to being forced to testify in cases against alleged war criminals. The tribunal ruled that a subpoena could only be issued if the evidence sought was of direct relevance to the case, and the evidence could not be obtained elsewhere (Berger, 2004).

A much stronger protection of reporters’ sources is provided in Mozambique. Article (74) (3) of the Constitution of Mozambique states that “freedom of the press shall include (…) protection of professional independence and confidentiality”. Article 30 of the Mozambique Press Law elaborates (Ojo, 2004):

Journalists shall enjoy the right to professional secrecy concerning the origins of the information they publish or transmit, and their silence may not lead to any form of punishment.

In Zimbabwe, the High Court in a 1994 ruling confirmed a journalist’s right to keep sources confidential. However, Zimbabwe’s government does not appear to accept the ruling (Mitchell, 2005).

4.2       Europe

In Goodwin v United Kingdom 1996 (22) EHRR 123 (ECHR), the European Court of Human Rights held that an order to divulge the identity of a journalist’s sources was a violation of Article 10 of the European Convention on Human Rights (which guarantees free speech and freedom of the press). The UK-based appellant had written an article about a company, which successfully interdicted publication and then sought to compel disclosure of the journalist’s source. The lower courts ordered the journalist to divulge the identity of his sources, and their order was upheld in the House of Lords. On appeal, the ECHR at Para 39 held that:

 

Protection of journalistic sources is one of the basic conditions for press freedom, as is reflected in the laws and professional codes of conduct in a number of contracting states and is affirmed in several international instruments on journalistic freedoms. 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. Having regard to the importance of the protection of journalistic sources for press freedom in a democratic society and the potentially chilling effects an order of source disclosure has on the exercise of that freedom, such a measure cannot be compatible with Article 10 of the Convention unless it is justified by an overriding requirement in the public interest.

 

The Goodwin judgment gives strong recognition of the importance of the safeguarding of sources for media freedom, and sets a standard that all states who are party to the ECHR must follow (Freedom of Expression Litigation Project, 1998). The ruling helped overturn the 2003 sentence of two Belgian journalists who were fined by a Brussels court for refusing to reveal their sources for an article about maladministration at the Belgian State Railways (Mitchell, 2005).

A number of national jurisdictions within the European Union – including Portugal, Austria, France, Germany, the Netherlands, Norway and Sweden – recognise some form of journalistic privilege to protect the confidentiality of sources. In Sweden the Freedom of the Press Act, which has constitutional status, binds journalists to respect the confidentiality of sources who wish to remain anonymous. Journalists who reveal the identity of a source without consent may be prosecuted at the source’s behest (Mitchell, 2005). Portugal has also given constitutional recognition to the “reporter’s privilege” to protect confidential sources (Mitchell, 2005).

In the United Kingdom, Section 10 of the Contempt of Court Act of 1981 provides that a court may not force disclosure of a journalist’s source unless it is in the interests of justice or national security or for the prevention of crime. The so-called “newspaper rule” holds that in defamation cases, journalists need not reveal the identity of sources before the commencement of the trial. The “newspaper rule” also applies in Australia and New Zealand (Mitchell, 2005).

 


4.3       United States

 

In Branzburg v Hayes a majority of the U.S. Supreme Court held that the First Amendment – which guarantees freedom of speech – did not give journalists any special privilege to escape disclosing the identity of a source under subpoena. The case, however, applied only to grand jury proceedings, and to circumstances where the journalists were direct witnesses of the crime being investigated. The ruling therefore has not set a legally binding precedent for other types of proceedings (Berger, 2004).

            In Branzburg, Justice Stewart argued for a qualified privilege, and his interpretation, known as the “Stewart principles”, is now widely accepted in U.S. state jurisprudence. Stewart asserted that journalists should be exempted from subpoenas to disclose the identity of sources unless the body seeking to compel the disclosure can demonstrate that

 

  • the information sought is relevant to a legal proceeding about a specific, probable violation of law;
  • the information cannot be obtained elsewhere, in a way that is less prejudicial of First Amendment rights; and
  • there is a compelling and overriding interest in obtaining the information.

 

Since Branzburg, 31 U.S. states and the District of Columbia have adopted so-called “shield laws” giving journalists protection against subpoenas, while courts in 18 other states have set precedents giving journalists some form of protection, usually based on the Stewart principles (Penrod, 2005). While two states – Alabama and Pennsylvania – provide absolute privilege, the other shield laws provide a qualified privilege, sometimes including materials and sources, sometimes sources only, and in some cases providing for in-camera disclosure to allow the court to determine whether to grant an exemption or not (Berger, 2004).

The U.S. attorney-general has adopted guidelines to ensure that prosecutors act with sensitivity to the special role of the media. The “Attorney-General’s guidelines for subpoenaing members of the news media” establishes a process to be followed before journalists are subpoenaed, including a negotiation stage. Subpoenas may not be issued without authorisation from the Attorney-General, and must generally be limited to verification of published information (Berger, 2004).

 

4.4       South Africa

 

The protection of journalists’ confidential sources is not given specific recognition in either the Constitution or any other statutory instrument in South Africa (Burns, 2001). A journalist may, in certain circumstances, be subpoenaed to provide information that could be useful to litigants in a civil case. The subpoena may require the journalist either to testify in person or turn over any physical evidence such as documents, tapes or photographs in his or her possession.

As regards criminal cases, Section 205 (1) of the Criminal Procedure Act 51 of 1977 provides that a judge or magistrate may, upon the request of the prosecuting authority, order any person who may have information about an alleged offence to appear before the court. Should a journalist be summoned in this way, and refuse to answer questions, he could be sentenced in terms of Section 189 (1) for a period of up to two years, or in the case of information being sought about certain serious matters, for up to five years. Section 205 has in the past been used to force journalists to reveal the identities of confidential sources (Burns, 2001). Faced with a Section 205 subpoena, a journalist has a choice of either honouring the obligation to keep a source confidential, and going to jail, or acting unethically and identifying the source.

Section 205 has been the subject of criticism from the journalistic and legal professions because it could inhibit the free flow of information, thus infringing Section 16 of the Constitution (Barker, 1998). The Truth and Reconciliation Commission in its final report called for the repeal of Section 205 because of the possibility that it may be used, as it had been in the past, to force journalists to reveal their sources (Retief, 2002). The Constitutional Court, however, ruled in Nel v Le Roux NO and Others 1996 (3) SA 562 (CC) that Section 205 inquiries are not unconstitutional per se and that other countries has similar provisions. The ruling did not, however, examine the use of Section 205 to compel journalists to disclose information.

There have been changes both to the letter and interpretation of the law since 1993 that give journalists some protection against a subpoena to testify or produce information, and also signify that the courts may be prepared to take into account journalists’ obligation to protect their sources (Barker, 1998).

In 1993 Section 205 was amended to the effect that a person who refuses to give information under subpoena may not be jailed unless the court is of the opinion that the information sought is “necessary for the administration of justice or the maintenance of law and order”. The effect of the amendment is that imprisonment for refusal to disclose the identity of a source will be “the exception rather than the rule” (Burns, 2001: 294).

Another change, even more significant from the point of view of journalists, is the shift in the meaning of what constitutes a “just excuse”. Raising a “just excuse” to providing information has long been recognised by the courts as legitimate grounds for escaping imprisonment in the case of a Section 205 subpoena. However, courts held that a journalist’s duty to protect a confidential source did not constitute such a “just excuse” (S v Pogrund 1961 (3) SA 868 (T); S v Matisonn 1981 (3) SA 302 (A)).

Since 1994, however, it has been accepted that a journalist may in certain circumstances have a just excuse to refuse to provide information under subpoena (Barker, 1998: 271). In S v Cornelissen; Cornelissen v Zeelie NO en andere 1994 (2) SACR 41 (W) a journalist, Andries Cornelissen of Beeld, was subpoenaed under Section 205 to provide information about a meeting that he had covered for his newspaper. When he refused to cooperate, police proceeded in terms of Section 205. The magistrate did not accept Cornelissen’s argument that journalistic ethics provided a just excuse. Cornelissen argued that

 

  • The newspaper depended on its reporters having a relationship of trust with the public and maintaining such a relationship in order to ensure efficient newsgathering;
  • If the reporter was perceived by members of the public as being an informer for the police, his ability to gather news would be damaged; and
  • His access to important sources of news would be seriously harmed and his reputation as an independent journalist would be jeopardised if he answered questions in terms of Section 205.

 

On appeal, the High Court confirmed the principle that there was no general privilege in terms of which journalists could have immunity from the compulsory giving of evidence on information which they had obtained in the course of their work. However, the court weighed up the public advantage that would be gained from questioning the journalist against the public prejudice this would cause, and concluded that there was indeed a just excuse for Cornelissen not to testify (Barker, 1998).

Although Cornelissen was not about the protection of confidential sources, the approach followed by the court shows an understanding for the special position of journalists in a democratic society, which guarantees freedom of expression and the media. The approach of the court in Cornelissen, in which a journalist’s ethical obligations are recognised as a just excuse to avoid testifying under Section 205, may also apply to cases where Section 205 is used to force a journalist to reveal the identity of a confidential source. As Barker (1998) stresses, however, every case would be considered on its merits and being a journalist does not automatically constitute a just excuse against questioning in terms of Section 205.

That the authorities are sensitive to the special position of journalists and the media is evident in an agreement with editors covering the use of Section 205.

On February 19, 1999, the Ministers of Justice and Safety and Security and the National Director of Public Prosecutions signed a Record of Understanding with the South African National Editors Forum, in which the parties agreed about the “need to balance the interests of the maintenance of law and order and the administration of justice on the one hand with the right to freedom of expression and specifically freedom of the press and other media”. The agreement recognised that journalists have a right and a duty to collect news, and “that in order to exercise this right and duty it is necessary, under appropriate circumstances, that their sources and information should be protected”. To this effect, the parties agreed to investigate the amendment of Section 205 of the Criminal Procedure Act to accommodate those journalistic rights and duties.

As an important interim measure, the parties also established a procedure to follow before a journalist would be subpoenaed to testify in criminal proceedings. This includes a mechanism for mediation of disputes between the prosecuting authorities and journalists, whereby representations may be made to the National Director of Public Prosecutions when an official wishes to compel a member of the media to testify.

Negotiations on the amendment of Section 205 continue between the National Director of Public Prosecutions, the Justice Department, Sanef and the Parliamentary Portfolio Committee on Justice (Sanef, 2005a: 24). After considering a number of options, a Sanef subcommittee recommended in September 2005 that the organisation lobby for a qualified privilege for journalists based on the “just excuse” defence, embodied in a suggested amendment of the Criminal Procedures Act to the Law Commission and the Department of Justice. This proposal is discussed in more detail later.

Recently, the South African government, through the Minister of Justice, affirmed that the protection of confidential sources is a prerequisite for media freedom. The Minister of Justice stated in an answering affidavit submitted in Munusamy v Hefer NO and Others 2004 (5) SA112 (O) that the protection of sources “is one of the basis (sic) conditions for press freedom” and that without it “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 affidavit noted that:

 

Having regard to the importance of the protection of journalistic sources for press freedom in a democratic society and the potentially chilling effect an order of source disclosure has on the exercise of that freedom, such measure cannot be compatible with Section 16 of the Constitution unless it is justified by an overriding requirement in the public interest.

 

Although the law does not yet accommodate a “journalist’s privilege” in South Africa, the developments discussed above indicate that there is an understanding within the Department of Justice that journalists’ ethical obligations, including the obligation to protect confidential sources, should be recognised and accommodated to some extent in our law.

 

5.         Towards a “journalist’s privilege” in South Africa

 

If one accepts that journalists’ confidential sources should have legal protection, the next question is how to effect that protection. Section 205 of the Criminal Procedure Act has a legitimate place in the statute book as a tool for the administration of justice, as the Constitutional Court has affirmed, and there is a public interest in maintaining it. As argued above, however, there is also a public interest in protecting journalists against the use of this law to force them to reveal the identity of confidential sources. How should that be embodied in law?

The first issue that needs consideration is whether such protection should be absolute (applicable in all circumstances) or qualified (dependent on a set of conditions). An absolute privilege would apply irrespective of the competing interests at stake, whereas a qualified privilege would allow courts to weigh up competing rights and interests, such as the state’s interest in the administration of justice, and the public interest in the protection of journalists’ confidential sources.

            “Shield laws” – statutes granting journalists a privilege to protect the confidentiality of sources – in the U.S. fall predominantly in the category of qualified privilege, with only two states, Alabama and Pennsylvania, providing for absolute privilege. The Pennsylvanian shield law is framed as follows (Freedom of Expression Litigation Project, 1998: 14): No journalist “shall be required to disclose the source of any information procured or obtained … in any legal proceeding, trial or investigation before any government unit”. Other shield laws provide for qualified privilege protecting confidentiality in certain circumstances, including when all other available sources of information have been exhausted, and where disclosure is essential to the administration of justice. Similarly, common-law journalistic privilege in U.S. states and other jurisdictions tend to be qualified.

            It is unlikely that the South African legal system would tolerate an absolute privilege, as Sanef – which advocated such a measure – concedes in its report on proposed amendments to Section 205 of the Criminal Procedure Act (Sanef, 2005b). Absolute privilege is unknown in South Africa and rare in other jurisdictions. Were journalists to push for an absolute privilege against testifying, they would be asking for something not accorded to professions which traditionally are privileged (Bates, 2000; Louw, 2005; Sanef, 2005b). In its proposal to the Justice Department pursuant to the Record of Understanding, Sanef proposed an amendment to Section 189 of the Criminal Procedure Act that would extend the “just excuse” defence against a subpoena in terms of Section 205 to cover the confidentiality of sources. Such an amendment would amount to a qualified privilege, dependent upon two conditions: that disclosure is necessary for the administration of justice or the maintenance of law and order; and that the administration of justice or maintenance of law and order cannot be served by other means[6].

The effect of the proposed clause would be similar to the Stewart principles. A court would compel a journalist to reveal the identity of a confidential source only if the information sought is relevant to a legal proceeding about a specific, probable violation of law; that the information is essential to establishing key issues; and that the information cannot be obtained elsewhere. This would inevitably lead the court to weigh up, as the High Court did in the Cornelissen case, the various competing public interests as envisaged in the Record of Understanding between Sanef and the Justice Minister. It would also permit flexibility for the courts in individual cases (Louw, 2005).

            A number of legal commentators (Van Niekerk, 1969; Van Rooyen, 1995; Nel, 1997; Delaney, 2005) have argued that the “just cause” defence could be extended to apply in cases of source confidentiality without the need to amend Section 189. In the Cornelissen case cited above, the High Court recognised that a journalist may have a “just excuse” not to testify under subpoena; this may extend to giving information under subpoena about the identity of a source. However, in the absence of an amendment to the Criminal Procedure Act, such an interpretation would depend on a judicial precedent being set, a situation not conducive to legal certainty in the short term.

            A difficulty with both of these options is that neither would cover subpoenas issued in the course of civil litigation. This difficulty may be overcome by enacting a specific law, similar to the U.S. shield laws, to protect the confidentiality of journalists’ sources. A South African shield law could be framed in a way that includes both Section 205 investigations and civil disputes, and it could regulate the circumstances in which the privilege could be invoked in civil litigation. The majority of U.S. shield laws cover both criminal and civil proceedings (Berger 2004). Although some commentators (De Klerk, 2005) favour such a solution, the Memorandum of Understanding between Sanef and the Justice Ministry does not make provision for the enactment of a journalist’s privilege law. It would appear, therefore, that such a solution is not on the agenda in the medium term.

            A third option looks to the Constitutional protection of freedom of expression and freedom of the media to establish a journalist’s privilege in both criminal and civil investigations. In this view, forcing a journalist under subpoena to disclose the identity of a source would be an unconstitutional infringement on the rights to freedom of expression and the media (Delaney, 2005). Interpretation of Sections 205 and 189 of the Criminal Procedure Act would have to take into account those rights, with the result that the “just excuse” would apply to the protection of confidential sources. The same type of defence could also be raised in civil litigation. Such an interpretation would bring South Africa’s judiciary in line with the European Court of Human Rights in the Goodwin decision cited above, which found forced disclosure of a confidential source to be incompatible with freedom of expression and the media unless justified by an overriding public interest in the disclosure. Our courts have in the past relied on the European Court of Human Rights for guidance in the interpretation of the right  to freedom of expression (see, for example, Government of the Republic of South Africa v The Sunday Times 1995 (2) SA (T) 221; Gardener v Whitaker 1995 (2) SA 672 (E)).

            The advantage of such an approach, which would amount to a qualified privilege rooted in the Constitutional right to freedom of expression, would be that it would cover both criminal investigations and trials, as well as civil litigation and discovery. It would not require legislative amendment or new legislation, both of which are time-consuming processes. On the other hand, it would again depend on a precedent-setting ruling by a higher court, and ultimately the Constitutional Court, which does not promote legal certainty in the short term.

 

6.         Conclusion

 

Confrontations between the state and the media, resulting in the jailing of journalists, come at a cost. The authority of the legal system depends on court orders being followed. Disobeying a court order, for whatever reason, defies the rule of law and erodes respect for the rule of law among others. That is something journalists and lawmakers should take into account when considering whether to grant journalists the legal right to act in accordance with their ethical obligations.

Although few countries provide absolute protection for journalists’ confidential sources, it may be argued that there could in certain circumstances be a public interest in maintaining the confidentiality of sources, that the public interest in maintaining confidentiality may outweigh prejudice to the justice process, and that an order to divulge the identity of a source would, in such circumstances, be a violation Section 16 of the Constitution. Without safeguards to the media, including the protection of journalistic sources, journalists’ ability to perform the watchdog function that the Constitution demands is impaired. Therefore, such an order cannot be justified except by an overriding requirement in the public interest. In the absence of such an overriding interest, our law should allow journalists to respect agreements of confidentiality made with sources.

This could be achieved through a proper interpretation of the freedom of expression provision in the Constitution, informed by the democratic values of openness, transparency and freedom, as well as an understanding of the central role of the media in a democracy.

 

 


* The author wishes to thank Prof Guy Berger for valuable input during the writing of this article.

 


[1] In 2005, Imvume Management (Pty) Ltd. filed a High Court application against the Mail & Guardian newspaper, its editor and three reporters to force disclosure of the identity of sources that had provided the newspaper with confidential financial information, including bank statements, of the applicant. The case arose after a series of reports in the Mail & Guardian alleging that Imvume, which has close links with the African National Congress, paid more than R11m to the ANC only days after receiving an advance payment of R15m from state oil company PetroSA, thus in effect diverting taxpayers’ money to the coffers of the ruling party. The Mail &b Guardian is vigorously opposing the application, and at the time of writing, this matter is still pending. The issue of disclosure of sources also was also highlighted in Munusamy v Hefer NO 2004 (5) SA 112 (O).

 

[2] In the United States, New York Times reporter Judith Miller was imprisoned after refusing to heed a subpoena to disclose the identity of a source. Three other reporters were subpoenaed in the same investigation, and agreed to testify after being freed by their sources from confidentiality agreements.

[3] See note 1 above.

[4] Copies of this code and others cited in this section are available on the web site http://www.journalism.co.za/modules.php?op=modload&name=News&file=article&sid=1778

 

[5] Many news organisations also have protocols and rules to be followed by journalists to ensure that information obtained from anonymous sources is not abused or misused. The South African National Editors Forum guidelines were developed with that objective in mind.

 

[6] The amendment, known as the “Spitz clause” after its drafter, Sanef legal counsel Advocate Derek Spitz, would entail a new subsection to Section 189, and reads as follows:

“189(2) For the purpose of the preceding sub-section, it shall be a just excuse for any person to refuse to disclose the source of information contained in a publication for which that person is responsible, unless the person seeking disclosure proves that:

(i)            disclosure is necessary for the administration of justice or the maintenance of

law and order; and

(ii)          the administration of justice or the maintenance of law and order cannot

reasonably be served by means other than disclosure.”

 

 

Cases cited

 

Branzburg v Hayes 408 U.S 665 (1972) 

Goodwin v United Kingdom 1996 (22) EHRR 123 (ECHR)

Government of the Republic of South Africa v “Sunday Times” Newspaper & Another

1995 (2) SA 221 (T)

Khumalo & Others v Holomisa (5) SA 401 (CC)

McCartan Turkington Breen v Times Newspapers (2000) 4 AER 913 (HL)

Munusamy v Hefer NO and Others 2004 (5) SA 112 (O)

Nel v Le Roux NO and Others 1996 (3) SA 562 (CC) 

S v Cornelissen; Cornelissen v Zeelie NO en andere 1994 (2) SACR 41 (W)

S v Mamabolo 2001 (3) SA 409 (CC) 

S v Matisonn 1981 (3) SA 302 (A)

S v Pogrund 1961 (3) SA 868 (T)

South African National Defence Union v Minister of Defence and Another 1999 (4)

SA 469 (CC)

Weinberger v Maplewood Review c7-01-2021. 

 

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3 Responses to Between privilege and subpoena: the protection of journalists’ confidential sources

  1. […] But while the law may not think much of the confidentiality of journalistic sources, professional ethics compel journalists to honour an undertaking of confidentiality. That is a basic tenet of journalistic ethics, found in virtually every journalistic code of conduct in existence. There are good reasons why journalists should protect the confidentiality of sources and avoid giving information to the police. It would have a chilling effect journalists’ ability to cultivate sources and gather news. It would also jeopardise journalists’ independence and credibility if they are seen by the public to be informants for the police. The end result is that journalists’ ability to serve the public interest would be undermined (a detailed discussion of the pros and cons, and the law regarding this issue, may be found here). […]

  2. […] I argued in an academic paper some years ago, in appropriate circumstances it is in the interests of society as a whole that journalists must be […]

  3. […] tribunal which would aim to adjudicate on cases brought against the media and finally there is the Criminal Procedure Act which is being amended to force journalists to disclose their confidential sources. At the moment, […]

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