The re-posting of this analysis is part of a cross-posting collaboration with MediaLaws: Law and Policy of the Media in a Comparative Perspective.
The reporter’s privilege of protecting the identity of his sources, takes origin from the need to preserve the bases of a democratic society. Protection of journalistic sources is strictly connected with a variety of fundamental rights, and has always been a sensitive topic.
As easily imaginable, freedom of information covers – almost in each democratic country – every journalistic activity, and in different ways grants them the privilege of not disclose the source’s name.
Generally speaking freedom of information matches with freedom to be informed, every citizen has to be informed and be aware in order to be conscious within is political participation.
Beside the potential danger for the physical safety of the source, it is on the stand the reputation and the trustiness of the journalist as an individual and as a category: if journalists have to disclose names of the sources – without any kind of control by the authorities – no one will reveal sensible information ever again.
The need of anonymity of the sources could be in contrast with some other necessities or rights, even protected by constitutions, such as the administration of justice: in those cases a balance of principles shall be applied.
The problem of the disclosure of the source usually arises within criminal proceedings, when the authorities issue a subpoena against journalist if they have the need of proceeding against the source or questioning him/her. Sources can be members of the police – that if caught revealing information could be prosecuted – or criminals or whistleblowers, at risk too.
In those situations courts shall balance the principles of freedom of information and independence of the press with the right of seeking for justice.
The analysis of the work has been conduct in a comparative perspective, addressing three different main jurisdiction: Italy, European Union (with a focus on the UK) and United States, in order to compare perspectives regarding civil law, supranational and common law systems.
In the last years the discipline of protection of the sources has been involved in some important technological changes (like whistleblowing platforms – one for all WikiLeaks), and laws has been founded completely unprepared. As a reaction Courts had to intervene and find ways to adapt provision to technological developments. Soft laws, guidelines from departments of justice, give some help in addressing the framework – but not enough – in particular regarding new technologies challenges.
The analysis of the discipline shall start from the legal sources in each jurisdiction.
In Europe, Article 10 of the European Convention of Human Rights states: “Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless frontiers”. Starting from Article 10, European institutions have issued several provision regarding journalism and media outlet, but on the matter of protection of journalistic sources the only acts enacted were soft laws: mostly recommendations of the Council of Europe.
The European Court of Human Rights has always given protection to journalists, with the intent of making the press the ‘public watchdog’ of democracy in Europe. One of the principal ways to freely exchange information and ideas in a democratic society is through an independent and without censorship press, especially in a multinational scenario.
The European Court of Human Rights had a main role in drawing up a discipline for reporter’s privilege of not disclosing the source. The first time was with the leading decision Goodwin v. the United Kingdom, where the Court had to decide whether the order of disclosure of the identity of a source by British authorities was an interference prescribed by law or – most importantly – necessary in a democratic society.
Regarding Article 10 of the Convention and protection of the sources, the Court was vital in the creation of solid standards and requirements to apply the privilege and to condemn national courts that forced the journalists when the prerequisites were not respect – according to national provisions and European standards.
The Italian framework proved himself as the most structured: starting from Article 21 (and in same case with a connection with Article 15) of the Italian Constitution. Article 21 states: “Anyone has the right to freely express their thoughts in speech, writing, or any other form of communication. The press may not be subjected to any authorization or censorship. Seizure may be permitted only by judicial order stating the reason and only for offences expressly determined by the law on the press or in case of violation of the obligation to identify the persons responsible for such offences.”
Already in the Constitution there is an explicit protection for the press, freedom of the press is settled and the “passive” profile of freedom of information has been granted by several decision of the Constitutional Court.
Article 622 of the Criminal Code deals with the Revelation of professional secrecy “Anyone having information, for reason of their status or office, or of his profession or art, revealed a secret, without just cause, or uses it in their own or another’s profit, is punished, if harm can result from the fact, with imprisonment up to one year or a fine from euro 30 to euro 516.”
The purpose of article 622 of the Criminal Code is to safeguard the freedom and security of private professional relations. A surprising aspect of Article 622 is the broad definition of the term “profession”, which includes every kind of service, art, office or public activity – but with secret of private nature – and every professional standing, as well as trainee and practitioners. Is considered really outstanding the inclusion of trainee in the definition, operated by the Constitutional Court, because in Article 200, par. 3 of the Code of Criminal Procedure the professional privilege for journalist is limited only to members of the Professional Association.
Article 200, par. 3 of the Code of Criminal Procedure – the reporter’s privilege – was added with the last reform of the code in 1988, after years of debates on the lack of a discipline on journalists called as witnesses and forced to disclose sources under threats of criminal charges (as happened to Oriana Fallaci when she wrote a story on the investigations around the death of Pasolini).
The text of the article: “(…) The provision referred to in paragraphs 1 and 2 shall apply to professional journalists registered in their professional association, exclusively to the names of the persons from whom they obtain confidential information while practicing their profession. If the information is essential to prove that the offence being prosecuted has been committed and its truthfulness may be ascertained only by identifying the source of the information, the judge shall order that the journalist specify its source.”
The order of disclosure of the identity of the source could be given only by a judge and not from a public prosecutor and with two requirements:
– the disclosure of the source is extremely necessary in order to the proof of the crime, in reference with specifics facts considered by the public prosecutor;
– the information needed shall be obtained merely with the disclosure.
The article provide strict requirements in order to protect the importance of the confidentiality, the source must be the last investigative option.
Another justification for the disclosure order from the judge could be the necessity to discover if the journalist is pretending to have a confidential source, but he made up himself the information. In such case he will incur in criminal liability under article 595 of the Criminal Code: defamation.
The main issues regarding reporter’s privilege in Italy have been raised in the last decade: seizures of informatics materials. Seizing incredible amounts of informatics materials at once to journalists, make available to the authority all the information about the confidential sources. This leads to incredible threats to the reputation and reliability of the journalist, to freedom of information and even to the safety of the source.
In the U.S. the discipline of the reporters’ privilege has been left to the independence of the states, until now there is still no federal shield law.
The First Amendment to the U.S. Constitution states: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof, or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the government for a redress of grievance.” An endless debate has involved a conceivable protection of journalistic sources by the first amendment, but the only Supreme Court decision, which address the theme, officially denied it.
In 1972, with Branzburg v. Hayes case, the Supreme Court denied the existence of a constitution reporters’ privilege under the First Amendment, but the concurrent and dissenting opinions of this decision complicated the framework and inspired several lower courts judgements on granting the privilege.
Most of the state whose last instance courts do not recognize the right under the First Amendment afford journalists almost the same protections under state shield laws, and some states grant protections under both.
At the state level, three different means of recognition of the privilege are granted: through a state law, on a common law basis and courts can create their own rules of procedure. Some states chose to introduce directly constitutional provisions as shield laws, or statutory shield laws or to leave the regulation of the reporters’ privilege to Courts – e.g. Virginia – under First Amendment protection or common law case-law.
The comparative analysis has showed that the discipline of the protection of the sources has as a main issue the uncertainty, due to an endless need to balance principle on a case-by-case base.
In the majority of jurisdictions, for a journalist in order to be protected under statutory law – for his activity of gathering and publishing information – is essential to be considered a professional. In those jurisdictions where the professionalism is not mandatory, we can find other requirements established – almost always – by the jurisprudence. The main issue has always been the constant evolution of the figure of journalists, and still now is keeping changing.
Especially in Italy, the contradictions around journalists are several. Article 622 of the Criminal Code has a broad definition of professional, and the same for law n. 69/1963 (law on the press and on the Professional Association). On the contrary Article 200 of the Code of Criminal Procedure grants the reporters’ privilege only for professional journalists, enrolled in the Professional Association. Publicists and all the “borderline” figures remain out of the protection, but can be prosecuted in other ways: evident contradiction.
How can this contradiction be solved? The legislator – in the context of a more broad reform of journalist – shall modify article 200 making it more broad, taking out the profession prerequisite and adapting to the code of conduct of journalist and to all the already existing European provision and standards.
WikiLeaks and new technologies have changed the discipline, to the extent that the entities involved are three and not two anymore: journalist and source plus an intermediary. How can laws and courts deal with this transformation? A solution hasn’t been found yet, the debate is still open and a one certainty remains: technology as an asset and a threat for journalists was WikiLeaks’ greatest teaching.
The security of journalists and their sources even in the most democratic countries shall be a priority, and their safety in some cases depends on how their communication and the information that they gathered are addressed.
In a recent interview to the Guardian, Edward Snowden has advised journalists to be very careful, to start to use technologies as assets for their profession. He claims that is not safe to make even the first contact with a source through “traditional” communication channels, and then pass to encryption: only from that first contact authorities can track down the source. He continues saying that also on the way to meet the source a journalist shall not use any electronic means, computer, mobile phone or credit cards: everything is traceable now.
In order to face this challenge, some majors freedom of the press associations are conducting researches, studies and making some efforts, especially developing whistleblowing platforms in the form of free downloadable software.
Interceptions and seizures of communications between journalists and their sources have become a real global threat for freedom of expression. In the next future probably whistleblowing platforms will be at risk too, but nowadays they seem the only safe harbor for confidential sources.
 “Persons shall not be obliged to testify on what they know on account of their function, service or profession, without prejudice to the cases wherein they must report these facts to the judicial authority:”