One ofthe constitutive features of a democratic state is the state that embraces fundamental rights and freedoms, among others, the freedom of expression, including the protection of journalistic confidentiality sources.
Across the world a free press depends on the free flow of information from the media to the people and from the people to the media. The issue of disclosing journalistic confidential sources has been a bone of contention in media landscape.
It is noteworthy that the privilege of non-disclosure of confidentiality sources is one of the core principles of journalists. Without upholding this privilege, journalists have little, if any, real role to play in the society.
Journalists often receive sensitive, perhaps explosive, information on political issues and have to publish them. Journalists must be able to assure their sources that their identities will remain anonymous in order to encourage the informants to continue supplying them information freely.
The protection of sources, sometimes also referred to as the confidentiality of sources, as the reporter’s privilege, is a right accorded to journalists under the laws of many countries, as well as under international law.
This privilege is also defined as the right of a journalist to refuse to reveal sources of confidential information. Non-disclosure of confidential sources is indeed an essential element in promoting both the free flow of information and the public’s right to know.
Journalists must be ready to uphold the fruits of their news gathering from scrutiny by government or private entities in order to maintain their editorial line independence. In fact, without these privileges, the ability of the press to scrutinise government and, for example, to uncover corruption would be severely compromised.
A question can, however, emerge: who is entitled to protection (under journalistic privilege)? Though each State has its own precise contours of a journalistic privilege, the broader protection is meant for the practising journalists, or anyone involved in the process of gathering, writing, editing, or publishing news or information to the public.
And which confidential sources are subject to protection? The privilege would cover not only the identity of sources but also unpublished information and documentary materials and other unpublished journalistic work product.
This article analyses the interplay between journalistic privilege of confidential sources and when a journalist could be compelled to divulge confidential sources due to supposedly overriding countervailing interests.
Whether it is a matter of principle, or practice if you like, the question is how to strike a right balance in protecting public interests, on the one hand, and without infringing journalistic right to confidential sources on the other hand. To begin with, let’s explore the practice in some of the EAC member states and beyond.
In Rwanda, for example, the confidentiality source has a pretty scanty attention. Under media law, in principle, the privilege of journalistic confidentiality sources is guaranteed. However, such privilege can be set aside by a court in matters relative to criminal investigations.
That said, a journalist/reporter is caught between a rock and a hard place: to either disclose his/her anonymous informants or shrug off the court order, which itself can be construed as contempt of the court.
Unlike in Uganda, press and journalist act provides that “a journalist shall not be compelled to disclose the source of his or her information except with the consent of the person who gave him or her information or on an order of a court of law”.
In both Tanzania and Burundi there is no privilege whatsoever available to protect journalists from disclosing their sources of information if required to do so by a court. More regrettably, the Burundian Press law provides that “at any time, the journalists can be compelled to reveal the sources of information before the Court in case of information relating to the following offences: state security, public order, confidentiality of defence, and physical and moral integrity of persons”.
Like most basic rights and freedoms, privilege of journalist’s confidentiality sources is not absolute. However, making a trade-off between the protection of issues of public concerns and privilege of confidential sources remains a tricky challenge.
The European Court of Human Rights (ECtHR), for example, declared, in Goodwin v. United Kingdom Case, in 1996 that journalists have a right not to disclose their sources unless an overriding countervailing interest outweighs the confidentiality of news sources.
The best approach has, however, been elegantly summarised by the ICTY Appeals Chamber, in a landmark case of Jonathan Randal, the former Washington Post reporter, where it was noted that journalists can be compelled to divulge the news sources, or testify, but certain threshold test must be met: “if the evidence sought is of direct and important value in determining the core issue in the case and such evidence cannot be sufficiently obtained elsewhere”.
Over and above, the court stressed that, for example, war correspondents could not be compelled to testify about their sources, except under extraordinary circumstances. Such an approach intends to limit courts from wielding their powers for granted and, at all times, coerce a journalist to reveal his confidential sources rather than being the last resort.
The writer is a lecturer and international law expert