Back in the apartheid era, it was not uncommon for journalists to be subpoenaed to reveal the identity of confidential sources. This was usually done at the behest of the security police, who wanted to get their hands on the identities and whereabouts of political activists. Several journalists, to their eternal credit, served time in jail for refusing to comply with a dreaded “Section 205” subpoena. Since 1994, however, “Section 205” subpoenas against journalists – so called because they are served in terms of Section 205 of the Criminal Procedure Act – have become rare. It came as a surprise, therefore, when two e-tv journalists were subpoenaed this week to reveal the identity of two thugs they had interviewed for a programme on crime and the Soccer World Cup.
According to Business Day, reporter Mpho Lakaje’s story, aired last Friday, featured interviews with two criminals. One said he would rob tourists during the World Cup. Another said he would shoot his way out of a standoff with police if he felt his life was in danger. Lakaje and news editor Ben Said have been subpoenaed to appear in court next week unless they voluntarily surrender the identity and contact details of the interviewees, original footage, and details regarding the firearms featured in the story.
Legally, e-tv doesn’t have a leg to stand on. Section 205 gives a judge or magistrate, upon the request of the prosecuting authority, the power to order any person who may have information about an alleged offence to appear before the court. Should a journalist be subpoenaed in this way, and refuse to answer questions, he or she could be sentenced to up to five years in jail. Section 205 has been the subject of criticism from the journalistic and legal professions because it could inhibit the free flow of information, but it has received the all-clear from the Constitutional Court.
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).
The e-tv journalists now face a dilemma: if they comply with the law, they will be acting unethically; if they follow the ethics of their profession, they’ll break the law (and possibly go to jail). The choice would be easier – and it would be easier to jump to their defence – if the story at the root of the trouble were good journalism.
E-tv has defended its story, saying it was “good investigative journalism”. But was it? Finding two thugs willing to say on air that they relish the prospect of robbing tourists during the World Cup is not investigative journalism, and serves no public interest. Everyone knows that criminals will try to prey on World Cup tourists. What is the point of giving two of them a platform to boast about it? If e-tv had unearthed a giant organised crime conspiracy to hit the World Cup, that would have been news, but that is not the case here. E-tv’s story in fact amounted to manufacturing the news rather than reporting it. It was not a case of a disinterested observer reporting a news event, it was a case of making news where there was none. By running the story, e-tv undermined the very principles of good journalism it may now have to call upon to defy the Section 205 subpoena.