Protection of Journalistic Sources - Essay Example

BACKGROUND: The Human Rights Act means all public ities must ensure that everything they do is compatible with the Convention Rights unless an Act of Parliament makes that impossible. The 1950 Convention, which followed the earlier Universal Declaration of Human Rights proclaimed by the General Assembly of the United Nations in 1948, seeks to give all citizens in Europe certain essential rights and fundamental freedoms. In order to ensure that the parties to the Convention honour its terms properly, a new court, the European Court of Human Rights, was set up along with the European Commission on Human Rights. Since coming into force on 2 October 2000, the Human Rights Act has made rights from the ECHR (the Convention rights) enforceable in UK’s courts. And the Act gives people a clear legal statement of their basic rights and fundamental freedoms. The key principle of the Act is that wherever possible there should be compatibility with the Convention rights. SECTION 10 CONTEMPT OF COURT ACT 1981: The section 10 of the Contempt of Court Act 1981 has given some formal recognition to the media’s watchdog role, in relation to the protection of journalists sources. It says: “No court may require a person to disclose, nor is a person guilty of contempt of court for refusing to disclose the source of information contained in the publication for which he is responsible; unless it be 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”. This section covers any speech, writing, broadcast or other communication made or addressed to the public. Although journalists take advantage of this section mostly, it is not confined to journalists only. It offers protection for the disclosure of any material, or information directly or indirectly disclosing, or likely to facilitate the disclosure of source’s identity. Lord Scarman, in Secretary of State for Defence v. Guardian Newspaper, has pointed out the profound importance of s. 10, is that the English law should move in the direction of a Bill of Right. Thus it gives a qualified privilege allowing journalists and others to refuse to answer questions or disclose documents in court which would lead to revealing the identity of a source of information. In practice this means that journalists have a special privilege which can override the general presumption that rules of evidence are designed to elicit and determine truth in court proceedings. However, the court assumes that the privilege is based on the public interest in receiving information and not on a special protection for journalists. The Council of Europe, Committee of Ministers has also announced the following recommendations which authorise a journalist not to disclose his source of information: Principle 1 (Right of non-disclosure of journalists) Principle 2 (Right of non-disclosure of other persons) Principle 3 (Limits to the right of non-disclosure) PRE-HRA INSTANCES: 1. British Steel Corp v. Granada Television case clearly shows the common law stance towards journalists’ protection of disclosing source of information. The majority of the House of Lords were of the opinion that it would be opposed to the public interest to recognize any journalists’ privilege. Lord Dilhorne considered that journalists should be treated as being in the same position as other citizens. Lord Wilberforce considered that ‘this case does not touch upon the freedom of the press even at its periphery’. He recognized that a public interest in the free flow of information exists but considered that it did not take the form of a journalistic privilege; he viewed it merely as a matter that could be taken into account in exercising the judicial discretion to only disclosure. (Fenwick & Phillipson, Media Freedom under the Human Rights Act (2006). Another view that was held by the court, in Norwich Pharmacal Co. v. Customs and Excise Commissioners, was that journalists facilitate the wrong doings of the source of information by potentially incurring liability under the equitable doctrine of breach of confidence and publishing the information. This case established that there was a person involved in wrongful act of another person and came under a duty to assist the person injured by those acts by giving him any information which he is able to give by way of discovery that discloses the identity of the wrongdoer. However, this stance was clarified in the post-HRA decision in “Ashworth Hospital v Mirror Group Newspaper”, in which information was leaked from within the hospital and there was a clear breach of medical confidentiality. On this ground it was established that the defendant – the journalist had been involved in the wrongdoing which was the basis of the application for discovery. The Mirror Group Newspaper had published the information which had been wrongfully obtained; therefore, they had clearly been involved in the wrongdoing. POST-HRA INSTANCES: 1. Another stance for disclosure of source of information is based on the ‘national security’. This stance was demonstrated in the “Secretary of State for Defence v Guardian Newspaper”, in which a document classified as ‘secret’ was leaked by Sarah Tisdall, a foreign office clerk to the Guardian Newspaper about arrival of cruise missiles in Britain. The Secretary of State in this case claimed that the national security exception under s 10 applied since a secret document had come into hands of a national newspaper and it was of great significance in terms of national security. A majority of the House of Lords accepted this interpretation. Lord Bridge feared the presence of such a disloyal servant in such a position as a potential threat to the national security. The majority in the Lords endorsed the view or Lord Bridge and suggested that further leaks could occur from the same untrustworthy person. Ultimately, the arguments were proven right and, on the direction of the court, the Guardian Newspapers disclosed the person (Sarah Tisdall) who was sentenced for six months imprisonment for her breach of confidentiality. The idea of national security didn’t convince the minority in the House of Lords, However, the House of Lords did suggest that more convincing evidence would be needed in future. 2. Similar reasoning was forwarded in the case of Camelot Group Ltd. v Gentaur Communications where Schiemann L.J concentrated, not on the public interest value of the information, but on the speculative harm to Camelot that might arise in future if the employee who had leaked the information perpetrated further leaks. FLAWS IN THE PREVAILING LAWS: Unfortunately, the conditionality attached with such provisions and the interpretations of these laws by the learned judges as well as the presence of parallel contradictory laws sometime disillusion the encouragement of media freedom. The pre-HHRA test was not therefore fully in harmony with that under Article 10(2) since the factor of proportionality was not being given full weight. It was also apparent that the test for necessity appeared to differ depending on the exception being involved. This stance has some basis in the Strasbourg jurisprudence under Article 10(2), but it is nevertheless unclear that the readiness with which this weaker test has been satisfied in this context would be acceptable at Strasbourg. A number of the leading pre-HRA cases – Secretary of State for Defence v Guardian Newspaper, British Steel and Camelot – reveal that a media friendly stance was not adopted by the judiciary in respect of the step-by-step analytical decision to be taken in a source disclosure case. In addition, a whole raft of new legislation is being enacted throughout the continent in response to the War Against Terrorism that directly undermines the rights of journalists. This increasing pressure threatens a fundamental shift in the traditional rights of journalists’ vis à vis the authorities and their ability to perform their ‘watchdog role’. All of these cases undermine the Council of Europe recommendations on the right of Journalists to protect their Sources, viewed as a ‘cornerstone of press freedom’ by the ECHR in the Goodwin Vs UK case of 1996. Another flaw in the reasoning by courts is that the post-HRA cases rested on the Norwich Pharmacal Jurisdiction in order to consider whether a journalist was mixed up in wrongdoing. The courts failed to recognize that they have a duty under s 6 HRA to develop common law and equitable doctrines in order to render them compatible with Article 10. This duty should have affected their approach to that jurisdiction; rather than merely following the pre-HRA authorities as to its nature. In this stance this means firstly taking account of post-HRA developments in the doctrine of confidence, and secondly applying s 6 to the jurisdiction itself. There is further possible argument that a new convention-based interpretation could be applied to a different aspect of the Norwich Pharmacal jurisdiction, in order to narrow it down, based on the duty of the court under s 6 and 2 HRA. There is also a possible argument that the reasoning process in the post-HRA decision fails to apply article 10 fully to the s 10 exceptions. The Lords in Ashworth and Sedley LJ in Interbrew took the view that the exception in favour of the ‘interests of justice’ would be covered, readily by one or more of the Article 10(2) exceptions. But the judges failed to appreciate that on one interpretation of the demands of Article 10 it can be argued that all the steps of Article 10(2), including the tests of necessity and proportionality, should have been applied, not merely the wording of the Para 2 exceptions, due to the requirements of s 3(1) HRA. PARALLEL LAWS: The existing parallel law also force to cooperate individual with the law enforcing agencies and the courts in the name of national security, disorder, public interest etc undermine the scope of the media protection. The Official Secrets Act 1911, s.6 gives exceptional powers to compel a person to answer questions regarding a breach of the Act. Sarah Tisdall, a Foreign Office Clerk, was sentenced for six months in prison by this act who leaked the information to the Guardian Newspaper (Secretary of State v. Guardian Newspaper [1995] AC 339). Financial Services and Markets Act 2000, s. 177 compels any person to answer questions or produce documents relevant to an insider dealing investigation. Financial Services and Markets Act 2000, s. 168 extends FSA powers to the investigation of other breaches of financial services regulation. All these laws have great impact over the existing media freedom laws and the judges and the investigating agencies take advantages of these laws. CONCLUSION: Unfortunately there is multitude of such cases in which the freedom of media has had been violated. Keeping in view such instances, it may easily be concluded that the prevailing laws have some flaws which have to be rectified in order to make the media more secure and free to perform its real ‘watchdog’ role and deliver the information to the public without any legal hindrances. There should be clarity in the laws which may not lead judges or the defence lawyers to interpret these laws wrongly. As, in the eye of law, both the accused and the common man have equal rights, so their rights may not clash with each other. If the fair trial is the fundamental right of the accused, it is also a right of the common man to know the factual position if there is public interest involved in the case. And it is also the ethical obligation of the journalists to safeguard their sources so they may obtain information. Hence there is a need to make laws keeping in view these aspects. Read More