MOOC FOE1x | 4.7.2 Journalists: Protection of Sources  | Scope of Freedom of Expression

MOOC FOE1x | 4.7.2 Journalists: Protection of Sources | Scope of Freedom of Expression

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– Welcome back. In the previous segment, we have reviewed how the practice of licensing
or registering journalists violate international standard
on freedom of expression. In this segment, we’re gonna
focus on the protection of sources, a key principle
at the heart of the practice of journalism and one that is protected by international standard. Protection of sources basically
means that journalists have the right to maintain and guarantee the confidentiality of their sources. The rationale is simple. While known and quoted
sources are always better for the purpose of transparent reporting, there are circumstances
when sources may prefer to remain anonymous. They may need to protect
themselves against retaliation of any kind that may even include killings for passing on sensitive
information for instance. In those conditions, journalists
should have the right, in theory, to keep their
sources confidential. They should not be ask
to divulgate their names to any one, including a court
or the police or their friends or the public. On the other hand, it has been argued including by the police or the court that they may require access
to the identity of the source and to the source, either for the purpose of interviewing them, since
they may have been the witness of a crime or in the worst case scenario for the purpose of
charging them with a crime, which may include divulgating
sensitive information. But I mean, the court
or the police may need to access the source for a
very large number of reasons. Should the journalist
be entitled to keep his or here source confidential? That’s a very important question and one that has been the object
of much court decisions and arguings and it’s an
issue for which courts may not always argue. In 1996, the European
court established at least as far as Europe is concerned,
the principle of protection of sources in a seminal case called, Goodwin versus United
Kingdom, when it found that the request for disclosure of a confidential source
in the journalistic context was an impermissible
violation of Article 10. Injunctions to prevent the
publication of the information could be considered necessary
in a democratic society but disclosure of the
source of said information was unnecessary. What is the case about? The applicant was a trainee journalist with the Engineer magazine who received confidential information
regarding the financial state of a company, Tetra Incorporated. The source provided the
information through telephone and wished to remain anonymous. The information itself was unsolicited and was not given in
exchange for any payment. It was provided on an
unattributable basis. The information itself appeared to come from a confidential corporate plan, one copy of which had gone
missing it later transpired. On the 22nd of November,
1989, the Justice Hoffmann, ordered the applicant to disclose, the applicant meaning the
newspaper, the Engineer, to disclose by three pm
his notes on the ground that it was necessary in
the interest of justice within the meaning of
Section 10 of the 1981 Act. There, basically the judge
ruled that the source identity had to be disclosed in order
enable Tetra, the company, to bring procedures against the source to recover the document,
which had gone missing and the document at the
heart of the disclosure. The journalist appealed
unsuccessfully to the court of appeal and the House of Lords. He refused to disclose his source and he was fined 5000 pounds
for contempt of court. Ultimately, he went to the European Court and complained of a
violation of Article 10 of the Convention. And the European Court had
the opportunity to rule on a very important issue and to deliver its seminal decision, one
that has been enforced almost systematically since then. I’m gonna quote from
the European Court here. It stated, “protection of
journalistic sources is one of the basic conditions for press freedom, as is reflected in the laws
and the professional codes of conduct in a number of Member States and is affirmed in several
international instruments on journalistic freedom. Without such protections,
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 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 a
measure cannot be compatible with Article 10 of the Convention.” The court concluded that there was no reasonable relationship
of proportionality between the legitimate aim
pursued by the disclosure order in the British Court and
the mean deployed to achieve that aim. “The restriction which the
disclosure order entailed on the applicant’s exercise
of his freedom of expression cannot therefore be regarded
as having been necssary in a democratic society.” And as I have mentioned,
the European Court has been pretty much systematic
in following this decision in protecting, protection of sources at least in the European context. Additionally, 90 countries
have specific provisions for the protection of sources’ protection in their national laws. So altogether I think
those numbers demonstrate that for many countries around the world, the protection of sources
is a key principle at the heart of press freedom
and freedom of expression. Indeed, that principle
has been highlighted by international jurisprudence. But interestingly enough,
there is at least one country where that protection is not enshrined and is not recognized as such and that’s the United States,
which has a far more ambiguous and complex approach to
the question of protection of sources. And I’m going to
highlight it because it is an important position that
the United States holds on that matter. Protection of sources
here in the United States is not recognized as a
First Amendment right. Although individual states
can offer their own version of protection of sources. So what this means is
that at federal level, there is no protection of sources. Also at state level, some
states have recognized in fact the majority of
the states have recognized the protection of sources. The U.S. Supreme Court
was invited to consider whether journalists had the
right to confidentiality of sources in the case
of Branzburg versus Hayes and it also added other
opportunities after that one. So let’s look at this
case and at the decision. Paul Branzburg was a staff reporter for the Louisville
Kentucky Courier Journal. In 1969, he published an
article which documented two young men producing
hashish for marijuana. The article stated that Branzburg
had promised his sources that he would not provide their identity. However Branzburg was
then later subpoenaed by a court to provide testimony
regarding the incident. He refused to identify the individual, but the trial court denied his contention that under both Kentucky
and constitutional law there is a reporter’s privilege to keep the sources confidential. On appeal, the Kentucky
Court of Appeal denied again Branzburg’s petition. Branzburg then filed with and
before the U.S. Supreme Court. He argued that without
the ability to maintain the confidentiality of
sources, journalists would lose their sources, thus providing
less information to the public Well, maybe strangely enough,
the U.S. Supreme Court rejected this contention. In a somewhat, in my
view rambling fashion, the court compared journalists
to average citizens and determined that if
a citizen isn’y able to claim testimonial privilege
and instead is forced to disclose their observations
of criminal activities, then so is a journalist. The court also believed that
the press had flourished without the privilege of
sources’ confidentiality and therefore, that there
was no ground to believe that without protection of sources, their will be no press freedom. The court however indicated
that states were free to establish what is referred to as, reporters’ privilege laws. The use of the term
privilege is very revealing of the way the United
States is considering and looking at confidentiality of sources. It’s really seen as a
privilege of journalists while in other parts of the world, it’s seen as enshrining the right of the journalistic profession. So what happened after that decision? Well, there is no federal level law that protects protection of sources or privilege of the reporters
but there are many laws at state level. They are called shield
laws and they are in place in some 40 states in the United States. So the vast majority of states
in the U.S. have adopted those shield laws in effect,
protecting journalists’ protection of sources. The absence of a federal
right to protection of sources has been challenged on several occasions but the original position of
the Supreme Court basically never changed. The U.S. Congress sought to adopt a bill which will grant
confidentiality of sources but the process failed
on a number of occasions over such issues as, the
definition of who is a journalist, meaning, who could claim this right of protection of sources? And it also failed on the
exception to the protection of sources particularly on
national security issue. And so it is that in the United States, which for many people around the world is symbolizing freedom of
expression and press freedom, journalists do end up
in prison for refusing to put forward their sources
on so-called contempt of court charges. For instance, Judith Miller
of The New York Times was jailed for 85 days in 2005 for refusing to disclose her sources in a government probe into a CIA leak. Another New York Times
journalist, much more recently, James Risen, fought a 10-year legal battle to protect his sources. He lost each of his appeals,
including a Supreme Court level but ultimately in October 2014, the then Attorney General
Eric Holder stated that, “No reporter’s going to go to jail as long as I am Attorney General.” So James Risen escaped the prison sentence but it remains that it could not call on reporter’s privilege
to protect his sources. To end this segment, let me
highlight a case from Norway which demonstrates that courts, even in situations of national security, can uphold freedom of
expression and the protection of sources. It’s actually a very important case particularly given the
international context and I will have the opportunity
to return to that case. In concerns a filmmaker called Rolfsen who was working on a documentary
about the Islamic group, the ISIS group. And he is following the
activities of the Norwegian group, Norwegian individuals who may
be on the way to join ISIS in Turkey. It’s particularly focusing on the leader of that Norwegian group
called Ubaydullah Hussain. His, Rolfsen’s cameraman
filmed how Hussain was driving an 18-year-old
Norwegian to the airport in Gothenburg, Sweden
in the spring of 2014 to catch a flight bound for Greece. But Hussain, who had openly supported extremist terrorist groups
and the 18-year-old were under police surveillance. The police believed Hussain
was recruiting the teenager for terrorist activities. Swedish police, in cooperation
with the Norwegian police stopped the 18-year-old at the gate and he was charged on suspicion
of intending to join ISIS in Syria. Hussain, the leader of
that group in Norway, was charged with recruiting
him in addition to charges he already face for
allegedly making threats and encouraging acts of terrorism. So far, I think so good. Nobody will object probably
to the intervention by the police. However, the Norwegian
police also took advantage of this arrest to seize the
documentary maker’s films, all of which were unpublished, in order to use those films
as evidence in the case they wanted to bring
against the 18-year-old and against the leader of
the Norwegian group, Hussain. The case eventually goes
through various layers and reaches the Supreme Court of Norway. And what did the court decide? It highlighted or relied
on the following elements and I’m going to present them to you. The first issue is not necessarily whether the seized material
identified a source, when the search warrant
is widely construed so as to potentially expose sources. So here the court is
insisting on the concept and nature of trust. Even if a source is not
named in these films that have been seized, the mere fact that those films could
be seized could undermine the trust relationship
between the filmmaker and his sources and could have of course, ripple effect outside
that particular case. If there are any suspicion,
the source could be exposed, that suspicion will be enough to undermine the ability of the journalist or of the documentary maker to proceed with his or her activities. Second, the court said that protection of journalistic privilege
under Article 10, meaning the protection of sources, extend to unpublished materials. Remember the film had
not been seen by anybody. These are, these were raw footage. Even if it does not
identify a specific source, that too, while not a novel
position is an important one. Even if the material is never used for any publication purposes, even if the unpublished materials
do not mention the source, the material should be protected along with the potential sources. Again, because of the centrality of trust. Thirdly, the court recognized
that freedom of expression is not absolute and can be restricted in the name of national security. However, it finds that the
project by this documentary maker Mr. Rolfsen addresses
a pressing social issue where the public as well as the government has a particular need for
knowledge and insight. The investigative
journalism was made possible by way of the trust
that Mr. Rolfsen enjoyed in an otherwise closed
Islamist environment. Effective source protection was decisive for the realization of this documentary. The course also said, and that
I think is very important, that the police had a number
of other investigation methods viable in cases such as this one, meaning it did not need to rely
on the film for its evidence it needed to do its work as the police and find other sources and
other forms of evidence. The previous court, the court of appeal, which had ruled in favor of the police, itself had been in doubt as
to whether the protection of sources should be waived. In the Supreme Court opinion, this doubt should have been to the benefit
of the protection of sources and I quote here, “Serious doubt must result
in not being made subject to a duty to testify,
rather than the opposite.” So this is a very important
decision on the part of the Norwegian Supreme
Court in a context where courts around the
world it must be said have always tended to
side on the same side as the police or the security officials. Very importantly in that particular case, the protection of sources was identified as central to building trust and central to the ability of the journalist to report on an issue of great public interest. And frankly, said the court,
the police need to do its work and needs to find
evidence without resorting to the journalist sources and to, in this case, his films. So I will end this segment
here with the contention that protection of sources
has actually become and international norm,
a norm of protection for journalists, and indeed
for the right to freedom of expression globally. The right of the public
to access information that may be sensitive in nature, that may be focusing on the
activities of government, on the activities of the powerful, on activities of the mafia,
or indeed on terrorist groups, this right can only be
achieved if the sources’ anonymity may be protected
and thus it is why protection of sources by
many courts around the world and observers of freedom of expression and freedom of the press is considered as fundamental to the
reality and the realization of the right to freedom of expression. Thank you very much.

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