Journalists sometimes get information from sources who, for various reasons, wish to keep their identities secret. The use of confidential sources raises a number of complex ethical and legal issues. To begin with, the idea of keeping information secret seems anathema to the basic purpose of journalism, which is to disseminate information to an audience. Also, some sources wish to remain confidential to hide their participation in questionable behavior, putting journalists in the awkward position of helping people escape social, political, or legal responsibility for their actions. If the identity of the source becomes a central question in a criminal investigation or civil trial, the journalist may have to choose between identifying the source and facing imprisonment or fines for refusing to do so. A journalist who voluntarily reveals a confidential source’s identity can face serious professional and legal repercussions.
The Journalist’s Conflict
Often, however, confidential sources who want to remain anonymous to protect their jobs, families, or safety have helped journalists expose substantial government or corporate wrongdoing. Perhaps the most famous example is “Deep Throat,” the source who helped guide Washington Post reporters Carl Bernstein and Bob Woodward as they uncovered the Watergate scandal in the early 1970s that led to Richard Nixon’s resignation from the American presidency. Deep Throat’s identity remained secret until 2005, when a former Federal Bureau of Investigation official revealed that he was the source. There are countless other examples of journalists breaking important stories with the assistance of confidential sources.
Journalists across the globe fear that if they identify a confidential source, that source and other potential sources will be afraid to provide useful information in the future. Studies of journalists worldwide have found broad agreement that it is unacceptable to identify a confidential source, even when there is little agreement across borders about other ethical practices and principles (Weaver 1998). Professional ethics codes generally agree that journalists should be cautious about promising confidentiality to sources but should keep such promises when given.
Keeping the promise is often easier said than done because of the potential legal complications. In nations that adhere to the rule of law, controversies over criminal violations and civil law disputes between persons or corporations end up in courts of justice. Courts attempting to determine guilt or innocence or balancing the rights of civil litigants generally require that all persons with relevant evidence provide that evidence to the litigants or investigators. Rules, often called privileges, that allow some persons to escape the obligation to provide relevant evidence are often narrowly construed and are only acceptable when they protect a societal interest that is deemed more important than the value of the evidence lost. To varying degrees, courts in many countries allow attorneys, mental health counselors, medical doctors, priests and other clergy, and spouses of accused criminals to escape the obligation to testify or turn over documents to courts or investigatory bodies. Additionally, courts in many countries have rules that allow potential witnesses to escape the obligation to testify if doing so would be unusually burdensome or would reveal irrelevant information. Persons who are not covered by such a specific privilege or general rule run the risk of being punished with fines or imprisonment if they do not cooperate with authorities.
Journalists have often sought legal protection that would allow them to conceal the identities of confidential sources without the pressure of being threatened with imprisonment or fines. Journalists have succeeded in many countries in winning limited protection, but one problem they face is that, unlike attorneys, mental health counselors, and medical doctors, among others, journalists usually do not have licenses or other credentials that would make it easy to define clearly and to limit the number of privileged people. Therefore, courts and other governmental bodies are sometimes reluctant to provide a privilege to an uncertainly defined group.
In countries that recognize a qualified (limited) privilege for journalists, the privilege usually allows journalists to avoid testifying to investigative bodies or in courts of law unless the information they possess is critical to the case and unavailable from another source. The privilege in nations or geographic regions of nations is created in various ways: constitutional provisions, general statutory evidence or procedure codes, specific shield statutes for journalists, or through court decisions interpreting constitutional or common law.
For example, constitutions in Argentina, Mozambique, and Sweden specifically protect journalists’ rights to keep sources confidential. Not surprisingly, there is little case law about the journalist’s privilege in those countries. General codes of evidence or procedure have provisions protecting journalists from being forced to disclose sources in Australia, Austria, El Salvador, France, Germany, Japan, and Norway. For example, the Supreme Court of Japan in 2006 found that a general procedural rule protecting “professional secrets” from forced disclosure applied to the identities of journalists’ sources.
Russia has a specific federal law on the mass media that provides for source confidentiality, and many of the now-independent states of the former Soviet Union have adopted similar legislation, including Kazakhstan, Kyrgyzstan, Moldova, Tajikistan, Ukraine, and Uzbekistan. However, the mass media law’s protection of the journalistic right to conceal sources is subordinate to general procedure codes and other important interests.
In Canada, New Zealand, Nigeria, the United Kingdom, and the United States, among others, journalists’ rights to conceal source identities rely to a great extent on judicial interpretations of general press freedom statements in constitutions or statutes. Nigerian courts handed down several decisions in the early 1980s recognizing a right of journalists to conceal sources under the constitution’s press freedom provisions, but a series of disruptions in the government has left the value of those decisions uncertain. Courts in Canada have been reluctant to tie the journalist’s privilege to the constitution’s free-press guarantee, instead requiring journalists to meet a high burden of proof that the source’s unmasking would interfere severely with legitimate media privacy concerns. In both New Zealand and the United Kingdom, a so-called “newspaper rule” allows the media to avoid disclosure of a confidential source during the discovery phase of a defamation case. New Zealand courts have used that rule as the basis for creating a broader common-law privilege for journalists, while courts in the UK have been unwilling to do so.
In the UK, international law may do what national law does not. In 1996, the European Court of Human Rights (ECHR) overturned British appellate courts and recognized a privilege under Article 10 of the European Convention on Human Rights, which protects freedom of expression. A few years later the same court held, in a case out of Luxembourg, that the use of search warrants against journalists was even more invasive of free-expression rights than the use of a subpoena to compel testimony. Decisions of the ECHR are binding on all member nations of the European Union. Shortly after the ECHR ruling in 1996, the Supreme Court of the Netherlands agreed with the ECHR that Article 10 required protection of confidential source identities.
In another case involving a court with multinational jurisdiction, the International Criminal Tribunal for the Former Yugoslavia (ICTY) ruled in 2002, and affirmed in 2005, that war correspondents have a qualified privilege. A former Washington Post reporter, Jonathan Randal, was called to testify about his interview, through an interpreter, with a man accused of taking part in the “ethnic cleansing” of Bosnia-Herzegovina in the 1990s. The ICTY’s Appeals Chamber eventually agreed with Randal that war correspondents faced particular dangers if forced to reveal sources. Routinely requiring reporters to reveal sources would undermine trust in reporters and could put them in greater physical danger from suspicious sources than they already faced in war zones. The ICTY declined, however, to extend the privilege to all reporters.
The Legal Situation in The US
The United States is often noted for its “exceptionalism” on freedom of speech and the press, and the first amendment to its constitution was one of the first such official recognitions of the right to free expression. However, journalists in the United States are often less sure of being able to protect their sources than journalists in other countries. The highest court in the United States, the Supreme Court, has only considered once whether the free-press guarantee in the first amendment gives reporters the right to conceal source identities from investigators. In 1972, the court in Branzburg v. Hayes said journalists had no right to refuse to testify before criminal investigation bodies called grand juries. The court ruled that in such a circumstance the public’s need to bring criminals to justice outweighed the need to protect journalists’ sources.
The decision was sharply divided, however, and lower federal courts in the United States have said, for the most part, that journalists do have the right to conceal sources in criminal and civil cases under the conditions proposed by Justice Potter Stewart in a dissenting opinion in Branzburg. This means that journalists’ attempts to conceal sources are judged on a case-by-case basis and that the party seeking the journalist’s testimony, notes, or source names must show that the information is highly relevant and important to a case and unavailable elsewhere. In addition to this common law protection in federal courts, 34 of the 50 American states, plus the District of Columbia, have shield laws that protect journalists to varying degrees in those jurisdictions. Most of the other states have court rulings recognizing a qualified common law privilege. There was no nationwide shield law at this writing, although proposals for such a law appeared in Congress, the national legislature, whenever journalists were jailed or fined for refusing to cooperate with federal investigations.
The uncertainty caused by differing jurisdictional rules on privileges raises the question of whether, and to what extent, the legal status of a privilege affects journalist– source relationships. Several American courts, including the Supreme Court in the Branzburg case, have lamented the lack of strong empirical data on the effects of privileges on sources and journalists. Such a study could be fertile ground for further research. Still unanswered with any certainty is the question of how to define “journalist” so as to grant protection to people gathering and reporting news without making the definition too broad. The problem is even more acute today with the existence of the Internet, which allows many more persons to publish their opinions and the results of their own investigations for a wide audience without being employed by a commonly recognized medium of mass communication. The Internet also allows for the easy flow of information internationally, and the increased globalization of information industries, including the news media, raises questions about the comparative rights of journalists in various countries, including the right to conceal sources. More research is needed into how various nations recognize and protect the news-gathering rights of journalists.
- Abrams, F., & Hawkes, P. (2004). Protection of journalists’ sources under foreign and international law. In MLRC white paper on the reporter’s privilege. New York: Media Law Resource Center, pp. 183–204.
- Branzburg v. Hayes, 408 U.S. 665 (1972).
- Burrows, J. (2004). Review: Media law. New Zealand Law Review, 2004, 787–809.
- Fargo, A. (2006). The year of leaking dangerously: Shadowy sources, jailed journalists and the uncertain future of the federal journalist’s privilege. William and Mary Bill of Rights Journal, 14, 1063–1119.
- Heeger, A. (2005). Securing a journalist’s testimonial privilege in the International Criminal Court. San Diego International Law Journal, 6, 209–242.
- Weaver, D. (1998). Journalists around the world: Commonalities and differences. In D.H. Weaver (ed.), The global journalist: News people around the world. Cresskill, NJ: Hampton Press, pp. 455–480.
- Woodward, B. (2005). The secret man: The story of Watergate’s Deep Throat. New York: Simon and Schuster.
- Youm, K. H. (2006). International and comparative law on the journalist’s privilege: The Randal case as a lesson for the American press. Journal of International Media and Entertainment Law, 1, 1–56.