Confidential sources: how much can a journalist protect his ear newt?

It doesn’t really matter whether you’re a journalist, blogger or reporter reading this. Hell, it doesn’t even matter if you’re an ordinary guy drinking a cup of Joe, watching the world go by while reading this. So stop what you’re doing (except for the coffee of course) and pay attention. Because what we’re going to talk about ultimately affects you and your progeny. We’re going to be talking about your right to privacy and your protection to freedom of expression under the European Convention.

We’ve had a lot of talk recently about protection of journalistic sources (you can read more here), how the need for shield laws is not, shock horror, the apparent paragon of virtue and excellence in the US and Australia, by none other than hysterical and not-so-transparent pedantic sycophants, how bloggers aren’t journalists, and ultimately that confidential informants, are nothing but lowlifes, criminals, and fraudsters.

The truth is that we don’t need shield laws, and that’s because we’ve got a Constitution and the European Convention to protect us. By that last one, I really mean the oversight of the European Court on Human Rights (ECHR). And the first thing that we learn from that Court, is that like all other rights, the right to privacy is limited in scope. Unlike the gun lobby in the US then, who act as if the Second Amendment were a totally unfettered right and abuse that 6 million-year-old clause literally to death thanks to big-NRA money, even right now as I write in the aftermath of the massacre in Las Vegas. But let’s leave the Americans, Trump with his little …rocket men, to themselves for the time being. So as I was saying, the ECHR did rule brilliantly in 1996 (for the local effects of that decision, read here) that:

Protection of journalistic sources is one of the basic conditions for press freedom. …Without such protection, sources may be deterred from assisting the press in informing the public on matters of public interest. As a result the vital public-watchdog role of the press may be undermined, and the ability of the press to provide accurate and reliable information be adversely affected. … [A]n order of source disclosure …cannot be compatible with Article 10 of the Convention unless it is justified by an overriding requirement in the public interest

– Goodwin v the United Kingdom

Others followed of course, some petitions were notoriously denied finding a justification for an interference or an order for disclosure of sources, while many others were granted finding violations to both the right to privacy as well as the right to freedom of expression, by various degrees and together with infringements on other rights according to the particular circumstances of the case.

Recently, just this past week we’ve had another ruling in Becker v. Norway where the court held that there had been a violation of Article 10 (come on, you know what that is by now!) in compelling Ms. Becker, a journalist, to give evidence with an order to reveal her sources, even if the informant made himself known.

It pointed out that her refusal to disclose her source (or sources) had not at any point in time hindered either the investigation or proceedings against Mr X. Indeed, the first-instance court which convicted Mr X [was satisfied that] the case had been sufficiently disclosed even without Ms Becker’s statement. The Court also bore in mind that the applicant’s journalistic methods had never been called into questionand she had not been accused of any illegal activity. Furthermore, her right as a journalist to keep her sources confidential could not automatically be removed because of a source’s conduct or because the source’s identity had become known

So, let’s hear it. What do you think?

And remember. In so doing we’ll toss your rights under Articles 8 and 10 into the mix free of charge!