Journalism – Protection of Sources

Journalistic Source

What is meant by a Journalistic Source?

Journalist’s who have been working in the industry for a long period of time often build up contacts whereby they get the information for their articles. These contacts are built up through mutual trust and co-operation by both parties.

Why are they offered protection?

In circumstances where a person provides information on the basis that he will not be named or compromised in any way it is one of the key rules of journalism that this will remain so.

Is the right of protection absolute?

The right of protection of sources is in effect a journalistic principal which does not possess absolute privilege against disclosure as in the case of a doctor or a lawyer.

Often individuals who speak to journalists in this manner are breaching a duty of confidence which they owe to another third party, for example their employer. As a result the journalistic principle of protecting sources can often clash with different principles held by the court. The outcome in a case like this will often depend upon the circumstances of the case but as is often the case the courts are reluctant to order the disclosure of a source.

Legislation

The main body of legislation governing the protection of journalistic sources is the Contempt of Court Act 1981.

Section 10 Contempt of Court Act 1981

This section of the Contempt of Court Act provides that in a free and democratic society there is a need to protect journalists sources and presumes in favour of those journalists wishing to protect their sources. There are however four exceptions to this presumption where disclosure of the information will be deemed to be necessary. The exceptions are as follows:

  • In the interests of Justice
  • In the interests of National Security
  • For the prevention of disorder
  • For the prevention of crime
  • In the interests of Justice

Whether disclosure of a journalistic source will be deemed to be in the interest of justice is dependant upon the facts of the particular case. Courts are very reluctant to establish that disclosure is in the interest of justice and will often only be found in cases where exceptional circumstances where vital public or individual interest are at stake.

An example of this may be a large company who are in financial difficulties having these financial difficulties exposed by a newspaper using a confidential source within the company. The company may argue that there has been a breach of confidence by the source and therefore in the interests of justice that source should be disclosed to enable the breach of confidence claim to be brought. Often it may be the case where the court would claim that the public interest in enabling the general public to be aware of the state of the company far outweighs the company’s interest in the breach of confidence claim.

In the Interests of National Security

In the case where national security is concerned the necessity for disclosure of the source will be almost automatic.

Keeping information concerning national security confidential far outweighs the right to keep the source confidential. This is the case as the people who will be coming into contact with information regarding national security will be those people employed in Government and should therefore be trusted servants to the government. If someone in this kind of position is willing to provide information to the press then they are not fulfilling their role as a trusted servant to the Government and will need to be indentified immediately and removed from their position in order to protect national security.

For the prevention of disorder or a crime

The public interest in preventing disorder or a crime is said to be of such overriding importance that disclosure will be almost automatic. If the disclosure can prevent a criminal offence taking place or some form of public disorder which affects the general public of the country then that will be considered far more important than protecting the interests of one individual journalistic source.

Human Rights

European Convention on Protection of Human Rights

Article 10 of the European Convention on Protection of Human Rights guarantees the human right of freedom of expression.

European Court of Human Rights

In a recent case whereby a UK Court has held that the public interest in protecting a confidential source did not outweigh the public interest in enabling a claim by a private company against that source the European Court of Human Rights has overturned this decision stating that it was a breach of Article 10 of the European Convention on Human Rights.

This is not the first time that the ECHR has overturned a decision of the UK Court in relation to protection of journalistic sources. Article 10 of the European Convention on Human Rights therefore has a pivotal role to play in this area of the law and will be the overriding principal ensuring that confidential journalistic sources are afforded the requisite protection.

Police

Police and Criminal Evidence Act 1984

Section 8

Under Section 8 of the Police and Criminal Evidence Act police are able to search premises where an offence has been committed and there is certain evidence on the premises to assist with the investigation.

This does not apply to certain material such as:

  • Legal privilege
  • Excluded material
  • Special procedure material

Section 9

Journalistic material falls within both excluded material (confidential journalistic material) and special procedure material (non confidential journalistic material) and can only be seized by the police if they apply for a warrant under Section 9 of the Police and Criminal Evidence Act.