Protecting journalist sources should be guaranteed by international standards

Linus Atarah

It all began 250 years ago in 1766 in the territory of present day Sweden and Finland – Finland was part of Sweden until 1809. The first Freedom of Information Act was enacted. It took another 200 years for the United States to pass a similar law in 1966 – the wheels of press freedom turns like an ocean liner. Now, the right to information has been widely acknowledged and cherished around the world as an integral part of press freedom and democracy.

 In 1993, the United Nations General proclaimed May 3 as the World Press Freedom Day to raise awareness of the importance of freedom of the press and remind governments of their duty to respect and uphold that right.

Nevertheless, as nearly 1,200 participants from over 100 countries gathered in the Finnish capital of Helsinki last week in a UNESCO conference to commemorate the 250th anniversary of World Press Freedom Day, there is still a dark cloud hanging over press freedom in many parts of the world.

APART FROM A GROWING NUMBER of journalists killed every year worldwide with impunity, a number of countries, including so-called established democracies have cashed in on terrorism to pass laws, which severely curtail press freedom.

In its final declaration the two-day conference, called on UNESCO, “to promote awareness about the right to information as an important human right, necessary for the enjoyment of other human rights, and essential for transparent and accountable governance and sustainable development”.

The declaration also called on each member state of UNESCO, “to reaffirm that press freedom and right to information are essential for a free, independent and pluralistic media, and crucial to the advancement of human rights and sustainable development”.

However, some of the journalists participating in the conference also raised concerns about inadequate protection of the sources of journalist which is also a fundamental principle to the capacity to do journalism that supports democracy.

“Journalists can draw on the universal right to freedom of expression and also right to privacy which are internationally recognised, says Julie Posetti, editor at the Australia-based Fairfax Media. But what is lacking, she said, “there is no international law that specifically enshrines the right to protect journalistic source as part of this other international human rights framework”.

According to Posetti, there are in some jurisdictions – in Europe for instance – regional laws and court judgements that uphold traditional rights to protect journalistic sources but these protections are rather done in “analogue way” – by which she means the laws need to be updated to take into account the digital reality in today’s world.

“IT WOULD BE WONDERFUL TO HAVE an international standard that declared that the protection of journalists source was fundamental to the right of freedom of expression”, she says, “instead what exists are piecemeal references to those rights around the world, some very good laws, but most are not up to date”, she said.

The protection of a journalist’s source is an ethical principle in journalism recognised globally. That ethical principle is so dearly held that several journalists have sacrificed their freedom by going to jail rather than disclose their source. The latest being Joseph Hosey, a journalist in Illinois, USA who, in 2013 was fined $1000 and $300 each day that he refuses to reveal his source

People who often approach journalists with sensitive information usually do that at considerable risk, including the risk of losing their lives. Such people would wish to have their identity protected but if journalists cannot guarantee that, then it will have a chilling effect on the public right to information in general.

SOME COUNTRIES HAVE LEGISLATION THAT provide protection to journalistic sources but such legislations have now being largely undermined by the use of data retention and national security and anti-terrorism policies globally. For instance, according a UNESCO  publication last year, out of 121 countries surveyed for evidence of source protection legislation, 69 per cent or 84 countries had inadequate legislation to protect journalistic sources precisely because these laws were undermined by mass and targeted surveillance, anti-terrorism and national security policies and data retention policies. 

But in countries that provide legislative protection to journalistic sources, the current digital era accentuates, the problem. The traditional rights of journalistic source might protect a journalist’s right in court not to identify the source, or  to hand over a notebook to the police, but not the digital information on one’s laptop or hard drive, all of which can reveal not just one source but many, many sources.

The lack of effective legislation to protect press freedom and journalistic sources even includes the 47-member Council of Europe, whose main objectives is upholding democracy, the rule of law and human rights.

“WE ARE ON THE WRONG PATH when it comes to freedom of the media”, lamented Patrick Penninckx, Head of Information Society Department in the Council of Europe.

According to him, national legislations in 27 of the 47 members in the Council of Europe are going towards the wrong direction. These individual member countries, he said, seem to be saying, ‘why should we have any kind of European body dictate to us or oversee what we are doing if we can decide on that on by ourselves’, said.

Therefore, these countries are resorting to “legislative nationalism”, rather than accept international good practices recommended by international institutions, even including recommendations by the Council of Europe.

Members of the Council of Europe include Russia and Azerbaijan but excludes Byelorussia. Some members are also members of the European Union.

As Pennickx put it, such press freedom violation it is not applied only to the “usual suspects”, namely, Turkey, Russia and Azerbaijan that are more often talked about when it comes to suppressing press freedoms. Rather, it is a general tendency among member countries to use terrorism legislation, state of emergency and mass surveillance to diminish rights of individuals and through that putting pressure on journalists and other media actors.

However, the need of a joint effort to construct a universal standard that would protect journalistic sources might run up against the current global reality of the scourge of terrorism.

“In this era of concern over terrorism, governments have no appetite for a binding legislation”, says Guy Berger, Director of the Division of Freedom Expression and Media Development in Unesco.

UNESCO, PERHAPS, IS THE MOST SUITABLE platform for such an initiative but as Berger admitted, it would be considerably difficult to reach a consensus among 195 members of UNESCO to adopt a common legislation to provide journalistic sources.  

Nevertheless, in spite of such limitations Posetti urges journalists to push forward with activism to achieve the desired goal.

“We need to be activists for the protection of our sources, because that principle is fundamental to our capacity to do journalism that supports democracy, without it we certainly are going be unable to continue doing the kind of investigative journalism that has the capacity to effect change”, says Posetti

To buttress that call, Mabel Rehnfeldt points out that, “Freedom of information is not a Christmas tree, a gift to be used from time to time. It is an everyday gym exercise,” she says. To Rehnfeldt, investigative journalist and Editor of ABC-Digital in Paraguay, legislation per se, may not be enough to achieve the goal, rather it should followed by advocacy and awareness raising for everyone, including journalists to fully grasp the significance of protecting journalistic sources.

Such efforts, complemented by influential intergovernmental bodies, such as UNESCO are what is likely to produce the desired results.

“We try to influence with the power of reason and the NGOs and the media have the power of embarrassment; so you bring those together”, says Berger.