PROTECTION OF SOURCES UNDER FIRE
Prague May 23rd 2003
Introduction This survey provides the European section of the IFJ with a reasonably clear map of a contested region. In some parts, the cartographers have been able to be quite precise. In others, detail has frankly been a little sketchy. These variations reflect the varying levels of diligence among the field observation teams. For my part I intend to report on what we received rather than to point in any direction. I would hope that you would decide the line of march in the ensuing discussion. To do this, you will need to take into account the analysis of Strasbourg law by Professor Voorhoof. But one lesson we can take from almost all of our map is that throughout this continent we have serious problems and tensions to resolve on this issue. Tension between judges and journalists over our duty to protect confidential sources is hardly surprising, even in countries where this duty is recognised by law. No rights are absolute and protecting sources inevitably encroaches upon the principle that all - even the most high - are equal before the law. Yet the entire judicial process requires some protection for whistleblowers. If they are denied anonymity, the information they wish to ventilate may be kept hidden and the wrong-doing they want to expose will continue to thrive. It‟s hard to see the justice in that. As has been frequently stated elsewhere, society needs to balance the public interest in the transparency of the judicial process whereby the court may need to find the origin of relevant information, against another public interest - the rights of journalistic sources to anonymity. The ultimate goal - justice - is arrived at in these cases, only after a sophisticated adjustment process. Slogans and crude formulae are irrelevant. The constant flow of new events and developments requiring readjustment means this process never reaches completion. It never achieves the kind of perfect balance which medieval theorists thought they saw in the celestial spheres. And what balance there is, isn‟t universal. In some countries, the value of protecting whistleblowers is ignored in custom and practice. In others - sadly too few - it is clearly enumerated in the law and recognised in society. For journalists, the protection of sources isn‟t a right but a duty. For the source, the informant, the whistle-blower, it is of course a right, which we seek to have recognised by society and in law. We come here today because we think that, far from such a positive outcome, this duty/right is coming under increased fire.
The protection of sources is a principle that cannot exist in a vacuum. As we will see later on, it forms part of a system of laws, rules and procedures that enable journalists to do (or prevent them from doing) their jobs. The seizure of TV footage by police in order to identify suspects, as happens all to frequently in places like Northern Ireland and Cyprus, is not strictly speaking a source protection issue. But where the state forces feel free to do this, we can be absolutely sure they won‟t balk at trying to breach our promises to our confidential informants. In each country, this principle comes under pressure, even at times gunfire, from different directions. But before I look at individual states, I want to highlight three of those directions: o international law (which brings with it positive aspects as well), o developments on the internet which challenge our professionalism and o armed conflict, particularly state responses to terrorism, paramilitarism or guerrilla activity. The institution of international judicial bodies such as the Tribunals on Rwanda and the Former Yugoslavia and of the International Court itself will, by their very existence disturb and are disturbing the public interest balance I mentioned earlier. The same is true for the publication of anonymous information in cyberspace. The so-called „war on terror‟ is already adding to the pressure on journalists covering conflicts between clandestine forces and the secret, dirty world of the spy. The new international judicial organs face greater problems in securing viable prosecutions than national courts do. It is often hard to compel witnesses to appear. The issues they confront, such as genocide and race-hatred also affect journalists in new and sometimes difficult ways. Of course the existence of these courts is to be welcomed by journalists. We can only really ply our trade when the rule of law applies and the extension of the rule of law to new regions and sectors provides new protection for people like us. But as these bodies assert their new competences, old battles may need to be refought and settled approaches to source-protection may need to be rethought. The internet as a source of anonymous and unverifiable information also sets new problems, as well as the obvious opportunities, for the whole of society and especially for us. Rumour and gossip were once only spread by word-of-mouth. Now they can cross the globe in seconds. The role of the journalist as verifier of the whistle-blower's tale is given an added importance in such a scenario. Professionalism and respect for deontology become even more important than before as we distinguish our activities from those of the shadowy web-loggers. But it's in the zone of secret conflict that we find ourselves under the heaviest fire and current political developments mean that pressure can only increase. It is when such
conflicts reach their dénuement, when the participants start to tell their tales (as now in Northern Ireland), that the pressure really mounts. But it‟s always there. Threats to journalists from secret services can be just as frightening as those from clandestine terror gangs. But the James Bonds and the quiet Americans can also avail at times of quasilegal powers to get their way. In Northern Ireland, a number of cases bear this out. Survey Turning back to our map of source-protection in Europe, let me start with the sunlit uplands of the Nordic countries where Sweden provides what many reporters see as the ideal example. The fundamental point to grasp about Swedish source-protection law is that it is merely a part of a wider system of free speech legislation, involving freedom of information and the absence of prior restraint. Under the Freedom of the Press Act, official documents (ie: documents produced by public bodies, in their final form) are in principle public. They must be kept available for anyone who wishes to see them, except in cases which are strictly limited by law. Thus when civil servants are approached for information contained in such documents, they are duty bound to reveal the information, except in cases involving matters like treason or other serious offences. As a consequence of that, their right to anonymity is protected. Sweden is, in my experience, the only country where the balance on this issue has remained settled for a long period. Anita Vahlberg of the Swedish Journalists‟ Union tells me that the last court case on protection of sources was in the late eighties, in connection with the murder of Olof Palme “when a court forced a reporter from one of the major dailies to confirm what everyone already knew - that the then chief of police had told her more than he should have”. This level of public agreement on source protection is unique, even among the countries of northern Europe. It is important to note that the protection of sources in Sweden is not viewed by jurists or by the general public as a protection for the journalist. It is quite correctly seen as a protection for the whistle-blower – the journalistic source him or herself who wants to expose a piece of wrongdoing. That point was made to me quite strongly by Mr Arne Jenson of the Norwegian Society of Editors, which collaborates on this issue with our colleagues in the Norwegian Journalists‟ Union. He felt that Swedish media workers had won this important argument, while Norwegian journalists had yet to win it. In both Norway and Finland there is statutory protection for the anonymity of the journalistic source. In each country, this protection lapses in very serious cases, where there is no other means for the police to ascertain the identity of a suspect. As in Sweden, journalists here strongly support the principle. In Norway, journalists took a quite rigorous approach when Bergens Avisen exposed a confidential informant who tried to manipulate the paper, passing on false information under the cloak of anonymity. Staff at Bergen‟s second-largest paper received almost unanimous criticism from their colleagues for making the contact‟s name public.
In Finland the exception to the rule of source protection occurs in criminal cases where the penalty is more than 6 years in prison and there is no other means of securing the information, under legislation dating to the foundation of the state in 1918. However the old legislation applies only to press and broadcasting – not to book publishing or the internet. Lauri Kerosuo of the Finnish Journalists‟ Union told me that a recent case involving a reference to the company Sonora in a book, has exposed this loophole. To their great credit, Finnish legislators have moved quickly (by European standards, anyway) to plug it and the amendment due to come into effect in 2004 extends source protection to books and the internet. In Greece there is no legal protection for sources but the issue has created controversy in numerous ways. Nelly Katsama of the Pan-Hellenic Federation of Unions (POESY) reports that state sources have frequently turned journalists into puppets using „leaks‟ to manipulate public opinion. She writes that on April 29, 2003, the publisher of a daily newspaper disclosed the name of the source who provided him with photographic and print material, in an effort to discredit the incumbent‟s opponent during the pre-election campaign of 1996, according to the publisher, who went on to name “a formerly close associate of the Prime Minister as his source”. She adds that this concern with manipulation “has led to the recent enactment of the Data Protection Act”, which protects individuals with regard to the processing of personal data. Her colleagues in the Periodical and Electronic Press Union have initiated a call for the institution of a Press Advocate, something like an ombudsman. The Press Law in Cyprus does refer to the journalists‟ right to protect sources and this principle was vindicated recently when the newspaper Politis published a bank document from a financial company in an exposé of a stock exchange scandal. The company sought the source of the document and a gagging writ forbidding further publication. But the courts refused. However colleagues in the Union of Cyprus Journalists also record numerous forced handovers of TV footage or camera negatives of demonstrations to the police. Outside northern Europe, this procedure is regrettably common. Sometimes, constitutional guarantees and statutory commitments on press freedom amount to much less in practice than they seem on paper. In the past, this was the case with commitments to freedom of information in Portugal but the Union of Journalists reports that the state recently honoured its commitments on source protection. In Portugal the constitution, the press law and the journalism law of 1999 all recognise the principle of source protection. In a recent case, a journalist refused to identify the source of a story about misuse of the public finances, citing professional ethics as his reason. The court recognised the legitimacy of his refusal and did not compel him to divulge the name. In Eastern Europe the story is even more complex and here I‟m particularly indebted to Irena Valova for her assistance in getting colleagues to fill in their survey forms. The
central problems in many states still include the introduction of fair legal procedures, the elimination of corruption and factionalism among the judiciary and the removal of government censorship. Matters such as these need to be dealt with before meaningful improvement can begin on source protection. That could possibly explain why there is no source protection law in Macedonia. But, on a more positive note, the Association of Journalists of Macedonia reports that there have been no prosecutions of journalists on this issue either. The same is true of Slovakia, where the Slovak Syndicate of Journalists has published a proposal for such a law. In Estonia which also is without source protection legislation, Allan Alakula of the Estonian Journalists Union also reports few cases on the subject. Romania is also among the countries without legal protection, but the authorities have been quite active in seeking to force journalists to divulge confidential sources. There were over 20 cases last year. Despite the absence of legal protection, courts have been willing to respect the code of ethics. For example, Calin Muresan a radio journalist and Ovidiu Eftimie, a Transylvaninan reporter refused in two separate cases to divulge the names of their informants and suffered no punishment. However such legislation is present in a number of East European states. In Montenegro, the Association of Professional Journalists reports that the law regulating access to public information does permit the journalist to protect his/her source. In a more loosely-related issue, the Hague Tribunal on the former Yugoslavia has indicted the editor of the newspaper Dan for publishing the identity of a protected witness. Over a year ago, the Bulgarian legislature passed an Act on the Access to Public Information, which specified the rules for access to sources. This legislation works both ways, freedom of information for journalists and also giving access to their sources in certain circumstances. The EFJ‟s Slovenian colleagues in both the Syndicate and the Association were very diligent in their replies to the survey form and have provided much useful detail. But I note that Ljuba Babic Kosir is speaking just before lunch on case studies, so I‟ll keep my remarks brief so you don‟t hear the same thing twice. I‟ll just refer to the Law on the Media of 2001 which does give the journalist the right, under certain circumstances to protect the confidential source. However considerable problems remain, especially in cases involving the disclosure of what the military wants to keep secret. Our hosts here in the Czech Republic have also been diligent in their reply to the Survey. Their legal system also provides an element of protection for the confidential source, under certain limited circumstances, in a statute passed in February 2000. But the Syndicate of Czech Journalists has found this law to be “toothless” because it leaves the confidential informant still entirely dependent on the courage of the journalist. The legislators rejected a counter-proposal from the Syndicate that the law recognise an obligation on the journalist to protect the source‟s anonymity, which could only be lifted under certain circumstances.
Two recent cases show that the law on journalists protecting their sources in this country is far from clear. Sabina Slonkova and Jiri Kubik of the daily Mlada Fronta Dnes exposed some political infighting involving a member of the government. When the government prosecuted them for refusing to divulge their source, the President of the Republic pardoned them. In spite of this the government continued to prosecute until the state attorney intervened to stop the procedure. In a second case (which is still continuing) Josef Klima exposed illegal arms dealing by buying a grenade, which he immediately passed to the police. He was then accused of arms procurement! My colleague Michael Klehm of the German Journalists‟ Federation (DJV), has done some very important work drawing together the legislation on this subject in Germany and he is due to speak later, so I‟ll avoid repeating what he says. We‟re also lucky to have Martine Simonis from Belgium, Jean Claude Wolff from Luxembourg and Inger Hoedt Rasmussen from Denmark, who can deal with the situation in their own countries. Tim Gopsill, like me is a member of the National Union of Journalists, which covers both Britain and Ireland. We‟ve agreed that he‟ll deal with Britain and I‟ll deal with both parts of my own country even though Northern Ireland is covered by British legislation. In the Republic of Ireland, the protection of journalistic sources is subject to a kind of stand-off between the judiciary, the legislators and the journalists. There is no legislative protection and judges have quite often threatened jail for journalists who refuse to divulge the identity of their sources. But no colleague has been actually jailed in last few decades. It would seem that decisions of the Strasbourg Court which Prof Voorhoof will deal with later, have had some persuasive influence over the Irish judiciary. However the fact that a journalist has not been jailed for contempt of court is not evidence that sources are protected in practice. A considerable degree of intimidation remains. Judges are apt to get very angry at the refusal of journalists to name their confidential sources. A case in 1997 involved Barry O‟Kelly of the Daily Star in Dublin who refused to divulge the source of details about the settlement between a police association and an ex-employee who had sued the body. The case took two days and the Judge, a man called Carroll, sent the reporter home after the first day with threats of prison ringing in his ears. However that night another judge visited Carroll bringing wiser counsel and the following day O‟Kelly was allowed to go free. He had first to undergo some fairly high-flowing rhetoric about the inevitable “tyranny” which ensues when “the law ends” and some sarcasm about the “martyr‟s crown” which he would wear if jailed. In Northern Ireland matters are a whole lot more serious than this kind of comic opera. British legislation dating from 1984, the Police and Criminal Evidence Act operates in Northern Ireland under an Order in Council system whereas some British legislation is copied into the Northern Ireland statutes and some isn‟t – a rather haphazard arrangement.
Under this legislation, search warrants require the signature of a member of the professionally trained judicary. However, in Northern Ireland some warrants have been issued merely on the say-so of a magistrate – a member of the general public who may serve without any prior training as a kind of lower-level judge. This approach seriously worries Northern Ireland‟s Human Rights Commission – a state body set up under the Good Friday (peace) Agreement. This commission is also concerned by the fact that neither PACE nor the Official Secrets Acts contain public interest defences. Thus it is not possible under this legislation to balance the claims of national security against wider considerations of the public good. Professor Voorhoof „s paper mentions the ground-breaking case in 1999 of Ed Moloney, who refused to provide police with his notebooks of an interview, which he had published. The police sought these, even though they could have no possible forensic value whatsoever. In the end the Belfast High Court quashed an order of a lower court for Ed to provide them. But the question remains, why did the police seek them in the first place? The only answer I can give is that they were indulging in a battle for dominance – that the presence of independent-minded journalists made the police quite uncomfortable. You may think that business was confusing but nothing surpasses the Nick Martin-Clarke case for sheer absurdity. Martin-Clarke was a dilettante who posed as a researcher for a member of parliament to get into a Northern Ireland jail to visit a dying sectarian murderer. He then forged credentials to obtain another visit, during which he persuaded the killer to confess to a particularly callous killing. He obtained the information while acting under false pretences and he later obtained temporary journalistic credentials to sell an article about this interview to a newspaper. Affected by guilt at the possibility that the killer would go free, he contacted one of my colleagues for advice on whether he should testify in court against the killer. Given the particularly depraved character of the killing and the circumstances under which MartinClarke obtained the information, my colleague advised him that he could testify – which he did. That advice may be debatable but it is impossible to argue that Martin-Clarke acted with the interests of journalism in mind. He had to go into hiding after the trial and will probably never get the chance to act as a journalist again. But, for what it‟s worth, I don‟t think our union will ever accept him back- even into temporary membership. The last case I want to mention is that of Liam Clarke and Kathryn Johnston, two highly respected correspondents arrested under the Official Secrets Act at 2am on May 1st. Their case does not involve an infringement of the principle of source protection per se. It concerns a closely related issue. But as in previous cases, it reveals the authorities‟ contempt for press freedom and acts as a warning to both whistle-blowers and journalists. Liam and Kathryn were kept in custody for 24 hours despite the fact that they have an eight-year-old daughter. Their crime? – Well, Liam published transcripts of phone-calls
between Sinn Fein leader Martin McGuinness, who was then a Minister in the Northern Ireland administration, and Tony Blair‟s office. In other words they showed that some British spies were both spying on British ministers and the same spies or others were willing for this to be publicly known. Their punishment for that „crime‟ was a series of raids on their home and offices, the seizure of bags of documents which were retained for a week and a barrage of intimidation designed to make them more complaint with the authorities in future. Finally What this survey shows is that the tensions we have to resolve at not all found to the east of our continent. In fact, some former communist countries are in the process of developing more advanced free press legislation than some „established democracies‟. It shows that the cliché is true: democracy does still require eternal vigilance. And the last section on Northern Ireland provides us with an important warning: in the era of the „War Against Terrorism‟, prepare for more or that kind of behaviour from the authorities.