Sanjay Neupane

During his speech in the Senate, former US senator William E. Borah said: “Without an unfettered press, without the liberty of speech all the outward forms and structures of the free institution are a sham. If the press is not free, if the speech is not independent and untrammelled, if the mind is shackled or made impotent through fear, it makes no difference under what form of government you live in, you are a subject and not a citizen”

Wider Interpretation
The term ‘press freedom’ has no universally accepted definition. Thus, it is subject to various wide and subjective arrays of interpretations. Indian Press Commission indicated press freedom as a) Freedom from legal restraint to publish any matter without any prohibition, b) Freedom from prejudice and preconceived notions, c) Freedom from executive control of the government, d) Freedom from the influence of advertisers, proprietors or pressure groups.

In any democratic society, freedom of press, expression and opinion is crucial. The significance of the press derives, from the process, technique and means used by journalists to gather, process, disseminate the crucial information from various sources to large, heterogeneous and widespread audiences thereby fulfilling the ‘watchdog’ role to guard the unnecessary abuse of power and authority at all levels of society.

In investigative journalism, a journalist gathers processes and brings forward crucial and hidden information for the sake of public interest. In this process, some person comes forward with a piece of important and sensitive information, requesting the reporter to convey such information to the general audience at regional, national and international levels. In a democratic society, it is of great importance that social evils are brought to public attention through newsgathering by the media. 

In such context, ‘confidentiality of source’ is the primary obligation of the journalist unless the ‘source’ itself wants to come out in the light. Without the protection of the source, the ability of the journalists to bring hidden and sensitive information to the public is seriously impaired. Unless the anonymity of the source is protected, there is a serious chance that the source will not come forward with sensitive information.

The media argues that confidential source protection ensures that the media can perform its role as a public watchdog uncovering wrongdoing, maladministration, corruption and other crimes, especially in the public service. So, do journalists have a special privilege to refuse to disclose the identity of the sources in any circumstances? Or is such a right subject to some limitation? This article tries to find out some National and International legal provisions and judicial practises relating to the topic.

Various European countries and institutions have adopted separate standards relating to the privilege of protection of source by the journalist. Principle 3(d) of ‘Resolution on Journalistic Freedoms and Human Rights’ adopted by the European Ministerial Conference on Mass Media policy in 1994 provides that the protection of journalist’s source enables a journalist to continue the maintenance and development of genuine democracy. Similarly, the Resolution of the European Parliament on Confidentiality of Journalist Sources and Rights of Civil Servants to Disclose Information passed in 1993 has also expressed concerns over attacks on journalists’ professional secrecy at the domestic level, facilitated by the absence of adequate legislation, and called on member states to rectify the problem.

Article 10(2) of the European Convention on Human rights provides that, “ The exercise of these freedoms, since it carries with it the duties and responsibilities, may be subject to such formalities, conditions, restrictions, penalties, as are prescribed by law and are necessary for a democratic society, in the interest of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation of the rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”

In France, before 1993, journalists were not entitled to professional secrecy and could be questioned about the source of confidential information they had achieved. Journalists were not provided with any special protection in court. But in 1993 the Code of Criminal Procedure was amended. After the amendment Article 109(2) provides,” Any Journalist who appears as a witness concerning the information gathered by him in the course of journalistic activity is free not to disclose its source.” Moreover, Article 56(2) of the Code of Criminal Procedure ensures that “investigations do not encroach on the free exercise of the journalist’s profession”

In Germany, section 383 of the Civil Procedure Code acknowledges that “when facts are confined to persons because of their profession including journalism, these persons are entitled to refuse to give testimony on these facts unless their source contains to disclosure.” German Courts also have adopted general rights to refuse to give evidence about the sources that contains the information essential for the press to fulfil its public functions.

Investigative Journalism
There are various instances wherein the news and reports of investigative journalists have played a vital role in, holding authority accountable, changing existing legislation; bringing positive changes to society and making the public aware by exposing wrongdoing and ill practises. The famous expose of Panama papers in 2016 details financial information about top bureaucrats and wealthy personnel that had previously been kept secret. Similarly, Cambridge Analytica Facebook Scandal revealed how Cambridge Analytica used personal information taken without authorization in early 2014 to build a system to predict and influence choices at the ballot box with personalised political advertisements. Similarly, exposure to the ‘Watergate Scandal’ of 1972 resulted in the resignation of US President Richard Nixon.

Daniel Ellsberg was part of a top-secret study conducted by the Department of Defence about U.S. involvement in the Vietnam War. Ellsberg leaked the study to a New York Times reporter, Neil Sheehan, who published part of the leaked information on the New York Times Sunday edition June 13, 1971. The headline read, “Vietnam Archive: Pentagon Study Traces 3 Decades of Growing U.S. Involvement.”

Because of the sensitive information contained in the study, the government feared it would compromise relationships with other nations and claimed it posed a threat to national security and diplomacy. The government claimed the publication violated the Espionage Act and President Nixon ordered further publications halted.
The court ruled that the intent of the publication was not to put the U.S. in danger but to educate the American people about the Vietnam War. By preventing the New York Times from publishing the material, the reporters’ 1st Amendment rights were being violated. Many historians now credit the publishing of the “Pentagon Papers” with helping to end the Vietnam War.

The First Amendment
In another case of Branzburg v Hayes, 408 US 665(1972) the supreme court of the USA invalidated the use of the First Amendment as a defence for journalists summoned to testify before the court. Paul M. Branzburg was a reporter for the Courier-Journal in Louisville, Kentucky. He published two articles related to the area’s drug problem: one investigating the making of hashish, the other interviewing local drug users. When summoned by a state grand jury to testify about criminal drug activity he had witnessed, he refused to answer. 

He claimed that the First Amendment granted reporters the privilege of confidentiality regarding testimony before grand juries. Writing for the majority, Justice Byron White declared that “the petitioners were asking the Court” to grant newsmen a testimonial privilege that other citizens do not enjoy. This we decline to do.” He refused to believe that such an obligation would undermine the reporter’s ability to gather and assemble confidential information.

Section 15(2) of the Press Council of India Act does protect the journalist from revealing his sources, but it is only applicable to proceedings in front of the Press Council. Before the court, no such protection was available to journalists. In the matter of public interest, the court can summon the journalists to disclose/her source of information. If the public interest outweighs the right of a journalist then the journalist must reveal its source before the court.

A recent bench led by Chief Justice of India N.V. Ramana during the Pegasus hearing held that “without protection, sources may be deterred from assisting journalists in informing people on matters of public interest, and this would be an “assault” on the role of the media as a “vital public watchdog.” Protection of sources is an “important and necessary corollary” of freedom of media.’’ In Nepal, Rule 8 of Nepal Journalist’s code of conduct, 2016 has the provision of protection of confidential sources. 

In this way, many countries of the world have the provision that freedom of speech may not be restricted except for where there is a clear law and present danger that it will result in substantive evil to society. 
Moreover, for the sake of safeguarding state security, the maintenance of law and order, protection of individual privacy and reputation and promotion of the public interest of a community the court may order a particular newsman to testify before the court or to disclose the source of the information.

Privately owned media is completely dependent on sales and advertising revenue. So they are deviated by the commercial interest of advertisers and other corporate agencies. Hence, it is fair to believe that they may not serve the interests and wishes of the oppressed, marginalised and voiceless community all the time. 

Modern-day media is guided by various vested interest and biases. If the right of non-disclosure of the source is made absolute then such a privilege carries its difficulties and dangers. Thus all the countries in the world have made the privilege of non-disclosure of sources subject to some limitations. Almost all jurisdictions recognise that the right of source confidentiality may be overridden in certain circumstances such as safeguarding national security, prevention of public interest and social order, the interest of the accused in trial etc.
Incidents can happen anytime and anywhere, maybe in public or behind the curtain. So journalists can’t be an eyewitness to every news he/she writes. They must rely on secondary sources of information provided by some insider/outsider. 

Confidentiality of Sources
The source may even provide various confidential evidence, papers, and photographs as evidence bearing in mind the potential economic, physical and professional dangers possible aftermath of such revelations. So when a source comes forward and reveals some information, a journalist must protect them from possible harm. 

If the right of a journalist to anonymity of the source is not ensured to the journalist then none of the scandals discussed above would come to the public domain. So, the journalist’s relation to the source should be similar to the ‘lawyer-client’ privilege and ‘doctor-patient’ privilege. 

But while ensuring the right of a journalist, the greater question arises why should the public trust the information/news where the source is not revealed at all. There is also the possibility that misleading and false news may be published by a vested interest group hiding behind the defence of the journalist’s right of anonymity of the source. Thus, in this case, the journalist’s code of conduct and professionalism comes into action. The act of a journalist should be dignified and should be trusted by the public than the only privilege of source protection can be worthwhile.

(The author is pursuing a B.A.LL.B degree at Nepal Law Campus)