Protecting the Unnamed Source: A

journalistic privilege? Damian Carney

10012012
In two posts on Inforrm on the issue of journalistic privileges (Part One:
Journalists and Citizens, Part Two: Accreditation and Privileged Access,) Hugh Tomlinson has
recognised the difficulties in members of the press claiming special privileges in the light of the rise
of citizen journalism. He argues that such privileges cannot be extended to all who are writing or
investigating for possible publication, and proposes instead limiting such privileges to those who
voluntarily sign up (and I would hope) comply with a code and other requirements to be an
accredited journalist to whom these privileges attach.
Whilst I have some sympathy for the argument to restrict access to family courts, parliament and
other arenas where there is either limited physical accommodation or the need to ensure that the
reporter can be trusted to comply with specific rules relating to those forums, once we move to
discussion of more general privileges (such as protection of unnamed sources) attached to what
might be called journalism or public communication limiting those privilege to accredited
journalists seems wrong in principle and unlikely to achieve what seems to be Hugh Tomlinsons
underlying desire that public interest journalism is protected. The focus of this post is on the need
to ensure one particular journalistic privilege the protection of unnamed sources is actually
available to a wider community of public communicators.
Journalists are not the only public communicators which perform a watchdog role.
Hugh Tomlinson suggests that whilst at common law no distinction is drawn between the traditional
member of the Press and others, the European Court of Human Rights has recognised that the Press
performs an essential function in a democratic society suggestive that some special protections
are needed to protect this watchdog role. A broader look at Strasbourg jurisprudence reveals that
the Court recognises that this watchdog role is not unique to the press, with the court stating
in Trsasg A Szabadsgjogokrt v Hungary (Application no. 37374/05) 14 April 2009,
The function of the press includes the creation of forums for public debate. However, the realisation
of this function is not limited to the media or professional journalists. In the present case, the
preparation of the forum of public debate was conducted by a non-governmental organisation. The
purpose of the applicants activities can therefore be said to have been an essential element of
informed public debate The applicant is an association involved in human rights litigation with
various objectives, including the protection of freedom of information. It may therefore be
characterised, like the press, as a social watchdog.
(Similar sentiments about the role of NGOs can be seen in Steel and Morris v United Kingdom (2005)
41 EHRR 403, [89] and Vides Aizsardzbas Klubs v. Latvia, no. 57829/00, 42, 27 May 2004). In
relation to the protection of unnamed sources, the United States has seen state shield laws and
courts, and several federal circuits, extend protections beyond the traditional journalist to a wide
range of other public communicators including NGOs, book authors, film makers, newsletters,
various internet sources and academics. Although often these protections are afforded on the basis
of extending protection based on analogy with what journalists do, it suggests the difficulty of
justifying restrictions to traditional journalists.
Is the accredited journalist proposal licensing?
Hugh Tomlinsons proposals do not restrict protection so narrowly, anyone can apply for
accreditation, but they must comply with the requirements of the regulator which he suggests may
include requirements of training etc.. This raises the issue of whether what is being proposed is a
licensing regime. Ordinarily, I am of the view that merely giving someone a privilege such as
protecting his anonymous sources does not amount to licensing. However, when the granting of
such a privilege is coupled with prerequisites such as abiding by the regulators code or engaging in
the training which Tomlinson suggests would be required to get accreditation, it does seem to create
two classes of journalists/public communicators the accredited (licensed) and the unaccredited.
The fact that such accreditation is performed by an independent regulator, rather than the state,
does not undermine the fact that there needs to be some statutory authority for these privileges if
they are to have legal effect.
It is clear that the aim of the accredited journalist scheme is to ensure that there is an improvement
in the standards of journalism and also to provide a carrot to attract individuals and organisation
into a voluntary press standards regulatory regime. However, it would seem to fall foul of a number
of global trends, and human rights agreements.
Licensing of journalists has been held to be a breach of national and international rights to freedom
of expression. The Inter American-Court of Human Rights in The Compulsory Membership in An
Association Prescribed by Law for the Practice of Journalism OC-5/85 from November 13, 1985, 5
Inter-Am. Ct. HR (ser A.) (1986) held that requiring journalists to be members of a professional
association and have specific educational requirements (i.e. a journalism qualification from the
University of Costa Rica) breached Article 13 of the American Convention on Human Rights. The
decision has lead to a number of Latin American countries removing membership of
journalistcolegios as a prerequisite to praticising journalism (and benefitting from associated
privileges), including a decision of the Brazilian Federal Supreme Court in June 2009 (Steven
Strausser, Defining a Journalist in Brazil, J-Licence: Steven Straussers Blog on Licensing
Journalists, June 7 2010 (if anyone has the official reference for this case please give it to me via a
comment on this post).
Discriminating between accredited journalists and other public communicators
These journalist colegios laws often make it unlawful for a non-accredited journalist to engage in
journalism, whilst Tomlinsons proposal does not do that, it creates two classes of journalists/public
communicators the accredited which are protected, and the unaccredited which lack the privileges.
However, if we look closer to home we see that such discrimination may not comply with the
European Convention on Human Rights. The Belgium Constitutional Court (nr 2006/91 of 7 June
2006) set aside a source protection law which only gave protection to journalists who regularly
and directly contributes to the collection, edition, production or distribution of information to the
public on the grounds that requirement of regularity breached Article 10 of the European
Convention on Human Rights. The legislation was amended to remove this requirement. Implicit in
Hugh Tomlinsons argument for accreditation is that those who are accredited must be in the
business of gathering information which suggests regularity and even if this is not a requirement
to be viewed as a regular journalist the differentiation between the privileges associated with the
accredited and non-accredited journalist is likely to be seen as discriminatory under Article 10 and
may breach the rights of the latter.
Journalists, other public communicators and source protection tests
My fear is that a proposal to limit the privilege against disclosure of anonymous sources to
accredited journalists will mean that other public communicators who perform essentially the same
public interest goals as traditional journalists will be denied the benefit of the privilege. We have
already seen that the European Court of Human Rights has accepted that NGOs perform a similar
role to the press, and in the recent Libel Tourism debate the point was often made that it was NGOs
who were taking up the mantle of investigative reporting which traditional news media were
neglecting. The goal of informing the public of important information which allows them to self-
govern, check the powerful and engage in democratic dialogue, is not despite suggestions to the
contrary one which is limited to the Press. The social scientist, other scholars, book writer,
documentary filmmaker, bloggers and other internet providers, wikileaks and others all provide
information which achieves these goals. Although the point does not seem to have been tested yet,
the Contempt of Court Act 1981 is certainly broad enough to cover publications by all these public
communicators, and it seems the accredited journalist proposal would be more restrictive.
In the United States, whilst the traditional approach to source protection laws has been to limit it to
those affiliated or employed by a certain type of employer (e.g. newspaper)(see Alabama shield law,
Ala. Code 1975 12-21-142), or has limited it to certain types of media, (see In Re Contempt of
Stone 397 NW 2d 244 [Mich Ct App 1986] where the then existing shield law applied to newspapers
and periodicals but not newscasts), many courts and legislatures have recognised the difficulties of
justifying limiting protection to traditional journalists. For example, the shield laws of Delaware (Del
Code Ann Tit 4320 (4)) and Texas (Tex. Civil Prac & Remedies Code 22.021(2)(B)) extends
protection to scholars; whilst the Californian Court of Appeals famously, inOGrady v Superior
Court 44 Cal Rptr 3d 72 (Cal Ct App 2006), interpreted the word periodical to find that online
journals were protected by state shield laws.
The accredited journalist proposal takes a different approach to the issue which reflects an emerging
idea in the academic source protection literature that the privilege should only be attached to those
subscribing to a code of ethics (Linda L Berger, Shielding the Unmedia: Using the Process of
Journalism to Protect the Journalists Privilege in an Infinite Universe of Publication (2002-2003) 39
Hous L Rev. 1371, David Abramovich, Calculating the Public Interest in Protecting Journalists
Confidential Sources [2009] 108 Columbia Law Review 1949). Supporters of this approach claim that
it is beneficial in that it allows extension of the privilege to non-traditional mediums like the
internet, and it clearly is a goal of the accredited journalist proposal to attract some bloggers (and
improve their ethical standards). However, is it going to attract alternative public communicators like
the social scientist or bookwriter?
If not we are faced with the Watergate conundrum. Suppose there is serious wrongdoing involving a
sitting Prime Minister. If the story relies on unnamed sources and the story is published in a
newspaper by accredited journalists then the reporters can rely upon the source protection privilege.
However, if the story is discovered by someone who writes a book and does not subscribe to the new
regulator he would not be an accredited journalist and would therefore not have the benefit of the
privilege. Yet, the benefit to the public is the same in both cases, the revelation of serious
wrongdoing.
Accreditation therefore works like restrictive affiliation tests creating unjustified distinctions between
classes of individuals performing a similar benefit to the public. Consequently what I propose is that
the privilege of protecting unnamed sources should not be restricted to the accredited journalist but
should be claimable by any public communicator who can demonstrate his publication or intended
publication achieves one of the instrumental goals of source protection laws (self-governance at
macro and micro levels, the watchdog roles, democratic dialogue, pluralism and the free flow of
information). Protection is afforded to those that can demonstrate that the class of information
provided achieve one of these goals. This would have the virtue of protecting public interest
journalism, but would not allow the protection to extend to journalists who engage is say celebrity
gossip. What is in the public interest is determined by the judges not the journalists, and this might
seem to some to involve the judges interfering with the autonomy of the press and editorial
functions. However, I would argue that judges have been applying class, rather than content based,
public interest tests in defamation defences like fair comment and responsible journalism for years,
and from this journalists have a degree of certainty that if the subject-matter of their stories
concerns areas such as politics and business they would be able to rely upon the privilege.
Conclusion
There is an argument that the test I am proposing will result in more litigation or abuse because it
allows anyone potentially to claim the privilege. However, the class approach makes certain types of
journalists confident that, subject to any other limitations a new source protection law would have,
they would prima facie qualify for protection. As for abuse if other rules are in place (such as
exclusions of eye witnesses to, and participants in, crime), or regularity of publishing such
information (although personally I am opposed to this requirement) this will reduce this potential.
I understand that there may be a need to provide incentives in the post-Leveson era to individuals
and organisations to subscribe to non-obligatory self-regulation (if that is what the new regulatory
landscape is to be), but we should not attempt to give incentives to public interest journalistm which
would handicap others performing similar functions.
Damian Carney is Principal Lecturer in Law at the University of Portsmouth. His post on Truth and
the Unnamed Source was published on 7 January 2012 on Inforrm.