PROTECTION OF

JOURNALISTIC
SOURCES

1. Importance of the right of freedom of

expression-protection of journalistic
sources
2. The legal protection of this right
3. Protection of journalistic sources in
Romania
4. Protection of journalistic sources under
the European Convention of Human
Rights
5. Case law
6. The chilling-effect
7. Conclusions

The protection of sources, sometimes also referred to as the confidentiality of

sources or in the U.S. as the reporters privilege, is a right accorded to
journalists under the laws of many countries, as well as under international
law. It prohibits authorities, including the courts, from compelling a journalist
to reveal the identity of an anonymous source for a story.
Journalists worldwide, whether working for a local or national newspaper, or
national or international television companies, depend on non-journalists for
the supply of information on issues of public interest. In many situations,
anonymity is the precondition upon which the information is given, because
of the possible repercussions which might affect their physical safety or job
security.
The need to protect their sources is so strong that many journalists are bound by
professional codes of ethics from revealing them.
Despite the clear advantages of ensuring the protection of journalistic sources
there are situations when the interest of journalists clash with other powerful
interests and rights.
For example when journalists refuse to name informants in court, the outcome of
the trial may be affected. So it is right and proper that judges should seek all
relevant evidence.
Despite all these problems it must be borne in mind that journalism plays a vital
democratic role in exposing wrongdoing.
Corruption, abuse and
incompetence in government agencies and private organisations will not be
realed and the public will be kept in the dark.

The recognition of protection of journalistic sources is fairly well

established in Europe both at the regional and domestic levels.
For the most part, the protections seem to be respected by
authorities in most cases and direct demands to sources seem
more the exception than the common practice.
The European Court of Human Rights and the Council of Europe
have taken a leading role in acknowledging that the protection
is an essential element of freedom of expression. For example, in
December 1994, the Council of Europe adopted a Resolution on
Journalistic Freedoms and Human Rights.
It has also been recognized by the EU Parliament and the
Organization for Security and Co-operation in Europe, for
example by passing the Resolution of the European Parliament on
Confidentiality of Journalists` Sources and the Right of Civil Servants
to Disclose Information.
At the domestic level, nearly every country in the region has now
adopted at least some specific recognition in law. In those few
countries that do not have specific laws, the courts generally
recognize the primacy of the ECtHR case law.

Romania is among the countries without legal protection, and

the authorities have been active in seeking to force
journalists to divulge confidential sources. The Journalists
Code of Ethics , established by the members of the Media
Organisations Convention in 2004, provides that a
journalist has the responsibility to maintain the
confidentiality of those sources who demand it, or of
sources whose life, physical or mental integrity or work
place could be in jeopardy if their identity was revealed.
Also, article 3 states that the protection of professional
secrecy and of confidential sources is both a right and an
obligation for a journalist.
This Code fulfils all conditions requested by the ECHR
regarding press freedom. However, one could argue the
efficiency, because of the lack of legal status.

The ECtHR has repeatedly emphasised that Article 10 of the ECHR

safeguards not only the substance and contents of information and
ideas but also the means of transmitting it.
Article 10 grants everybody a right to receive and impart information
and ideas without interference by public authority. But it adds that
the right carries with it duties and responsibilities and stipulates
the conditions where the right can be limited.
The limits:
- must first be stated in law
- they must conform to what is necessary in a democratic society
Other limits:
Interest of national security;
Prevention of disorder and crime;
Protection of health and morals;
Protection of the reputation or rights of others;
Preventing the disclosure of information received in confidence;
Maintaining the authority and impartiality of the judiciary.

In 1989, Peugeot boss Jacques Calvet rejected workers' pay

demands during industrial relations conflict at the
French car firm. However, Claude Roire, journalist at
Le Canard Enchan obtained photocopies of
confidential tax files which showed M Calvet had
increased his own salary by 45.9% over two years.
Roire and Roger Fressoz, the paper's director of
publication were fined a total of 15,000 Francs for
breach of professional secrecy.
The Strasbourg court noted that the journalists had duties
and responsibilities to obey the law, but "in the
particular circumstances" of this case,"the interest in
the public's being informed outweighed" any
responsibility to remain silent about what had been
highly confidential documents.

In Belgium, two journalists were convicted by a civil court for abuse

of freedom of the press and for having exceeded the limits of
acceptable criticism by insulting and defaming four members of
the judiciary. In several articles, De Haes en Gijsels had accused
three judges and an Advocate-General of marked bias and
cowardice. The two journalists especially expressed the opinion
that the judges hadn't been impartial in their handling of a case on
the custody and sexual abuse of children (case of Mr. X). Their
story was backed up by evidence in the hands of another Belgian
court.
Rather than identify their informants, De Haes & Gijsels sought to use
this evidence in their defence against the defamation case. But the
Brussels court chose to see this request as proof that they had not
shown enough diligence in researching their story, and refused to
allow them to introduce this court evidence instead of revealing
their own sources.
The Court however is of the opinion that the conviction of the two
journalists because of their accusations of bias and lack of
independence against the judges and the Advocate-general, is a
breach of Article 10 of the Convention.

Tillack, a journalist working in Brussels, was suspected of having

bribed a civil servant, by paying him EUR 8,000, in exchange for
confidential information concerning investigations in progress in
the European institutions. The European Anti-Fraud Office OLAF
opened an investigation in order to identify Tillacks informant.
After the investigation by OLAF failed to unmask the official at
the source of the leaks, the Belgian judicial authorities where
requested to open an investigation into an alleged breach of
professional confidence and bribery involving a civil servant. On
19 March 2004, Tillacks home and workplace were searched and
almost all his working papers and tools were seized and placed
under seal.
The Court held that there had been a violation of Article 10 of the
Convention. It emphasised in particular that a journalists right
not to reveal her or his sources could not be considered a mere
privilege to be granted or taken away depending on the
lawfulness or unlawfulness of their sources, but was part and
parcel of the right to information. It found the reasons given by
the Belgian courts to justify the searches insufficient.

The most significat consequence of forcing journalists to disclose their sources

is the effect it will have on their ability to obtain information. Some
sources will refuse to talk to them for fear of being revealed. Other
sources will not trust them as the journalists` reputation will be changed
from that of an independent gatherer of information into that of an arm of
government.
Protection of journalistic sources is one of the basic conditions for press
freedom(). Without such protection, 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 be adversely affected. [A]n order of source disclosure ...
cannot be compatible with Article 10 of the Convention unless it is
justified by an overriding requirement in the public interest. (Goodwin
v. the United Kingdom, judgment of 27 March 1996, 39).
Another significant consequence is the measures that journalists must take to
avoid facing situations where they might be asked to disclose their
sources. For example a common practice is to delete the information once
the story is completed.
The most serious problem is the physical endangerment of the journalist.
Many journalists work in areas of extreme danger such as war zones or
investigations and reporting on dangerous crime. If a journalist is
considered an informant or a spy for the authorities or a future witness in
a trial, this may result in their being targeted.

1.

2.

3.

Do you think the right of protecting journalistic

sources should be respected? As a judge or
prosecutor would you force a journalist to reveal
his sources and in what conditions?
What would you do if you were in the situation of
facing jail time for respecting a problem of ethics
in your own profession?(for example respecting
the nondisclosure of the decision-making process)
Last year there was a legislative bill that stated:
The disclosure of information that is not public ,
from a criminal case that is under investigation is
punishable with prison sentence from 6 months to
3 years. The journalists from Romania saw it like a
restriction of their right. What is your opinion?