Part 9 - Protection of Confidential Sources

Question 1

What does the Editor’s Code of Practice have to say about confidentiality of sources? What does this rule mean?

Answer 1

Clause 14 states that journalists have a moral obligation to protect confidential sources of information.

This means that a journalist and/or media organisation has to be prepared for the consequences of a refusal to obey a court order to reveal such a source’s identity or of a refusal to disclose material which may do that, because such refusal could be ruled to be a contempt of court, and so the punishment for refusal could be a fine or a jail sentence.

Question 2

What has case law established regarding protection of sources? What does this mean?

Answer 2

Case law has established that the rights in Article 10 of the European Convention of Human Rights mean that a journalist or media organisation should not be compelled by a court to do anything which could disclose such a source’s identify unless the court has ruled that the disclosure is necessary in a democratic society because of an ‘over-riding requirement’ in the public interest; and that any investigative action officially authorised to achieve such disclosure must in law only take place after a formal decision that such an ‘over-riding requirement exists, and that action/use of the law should be proportionate.’

This means that the source’s conduct - that he or she has committed a crime or may have some selfish motivation or has caused publication of false information - does not in itself override the journalist’s Article 10 rights to refuse to reveal his/her identity. The crime suspected would have to be of sufficient gravity, and also using the law to try to discover a journalist’s source’s identity should, if that use was justifiable, be proportionate to a specific, legitimate aim in the particular case. To comply with the proportionality principle, the investigating state agency should have exhausted other means of identifying the source before using its powers and the law against the journalist.

Question 3

When protecting sources, when are Article 10 rights more likely to prevail?

Answer 3

If the court accepts the journalism involved (and the nature of the story sought or gained) is defensible ethically including as being in the public interest.

Question 4

What is the ‘shield law’ that may protect journalistic activity? Mention the relevant statute.

Answer 4

The ‘shield law’ may be considered in the context of whether the journalist’s or media organisation’s Article 10 rights should prevail. Section 10 of the Contempt of Court Act 1981 states that:

‘No court may require a person to disclose, nor is any person guilty of contempt of court for refusing to disclose, the source of information contained in a publication for which he is responsible, unless it is established to the satisfaction of the court that disclosure is necessary in the interests of justice or national security, or for the prevention of disorder or crime.’

Question 5

Give some examples of cases where journalists were ordered to disclose their sources.

Answer 5

• Bill Goodwin case
• Saville inquiry case
• Tisdall case
• Suzanne Breen case

Question 6

Why should all journalists as a norm take practical steps to protect the identity of a confidential source?

Answer 6

• because of the ethical obligation to protect such sources
• because UK laws give the police and other agencies powers to conduct surveillance, to secretly intercept communications, to secretly gain communications data and to conduct searches
• because a journalist may not be aware of such powers having been officially authorised

Question 7

What practical steps should journalists take to protect the identity of confidential sources?

Answer 7

• journalists should only promise confidentiality if the nature of the offered information means publishing the story will be defensible ethically as being in the public interest and obtain permission from their editor to promise confidentiality to a source
• journalists should alert the source to steps he/she should take to avoid being identified and warn of the risk of that happening which might already exist, particularly if the method of initial contact ahs created such a risk
• journalists should double-check how the source wants to be described in what is published
• ensure, by checking with the source before publication, that none of the material, if published, will in itself identify him/her

Stories likely to be sensitive for police or other state agencies or public bodies with investigatory powers:

• journalists and sources should not email each other
• if phones have to be used for contact, journalists and sources should each have a pay-as-you-go mobile bought anonymously with no GPS facility
• these phones should not be used to go online or for anything else apart from calls related to the story
• journalists and sources should not carry or take any phone with them when they meet because all phones produce some geolocation data
• journalists should not meet sources where there are CCTV cameras
• journalists and sources should keep their pay-as-you-go phones physically apart from the devices they routinely use
• journalists should avoid keeping any material which might help identify a source on any decide or in any place where it may be found
• if such information has to be stored, it should be kept secure
• a document or computer file supplied as a leak from within an organisation should be copied by being typed out to create a fresh document or file, and the original then destroyed, otherwise some markings in the original document or metadata in the original file could lead to the source being identified
• if the material has to be kept digitally, it should be in an encrypted decide such as memory stick or an external hard drive, which should only be opened using a computer which is not linked to any physical or wi-fi network
• payments to sources should be untraceable