The Inadequate Legal Protection of Media Sources and Journalistic Materials

The press relies on the law to offer a degree of protection for their sources and materials. In practice, journalists may wish to keep information and records confidential from the public but, under certain circumstances, a court may make an order for the disclosure of a source or for the police to seize evidence from the journalist’s possession. As such, the situation becomes evident that the law is not providing sufficient safeguards to preserve the interests of the media and, consequently, the freedom of expression guaranteed under Article 10 of the European Convention on Human Rights is frequently being overlooked.

Journalists use ‘un-attributable’ sources in their stories for a number of reasons and they are often an essential factor in publishing a feature of public interest. Some informants will only speak to the press after gaining a guarantee of confidentiality, as they may be worried that they will be dismissed from their job or exposed to danger if they are identified to the public at large, and it would seem only fair that journalists should be able to honour their promises. Indeed, revealing a source who has breached the Official Secrets Act puts them at risk of prosecution. This also speaks to a wider public interest element, as potential informants of the future may be deterred from divulging important information to the press if it becomes common knowledge that the media cannot be trusted to conceal identities. Therefore, the law should provide the media with specific provisions to be applied with certainty to allow them to confidently assure their sources of their anonymity.

Under clause 14 of the Editors’ Code of Practice, journalists have a moral obligation to protect confidential sources of information, but this is not a legally binding authority. However, section 10 of the Contempt of Court Act 1981 established a presumption that journalists should have immunity against a disclosure order, which can be rebutted if the exposure is necessary for one of three reasons: either in the interests of justice, in the interests of national security or for the prevention of disorder or crime. As a result, it would appear that, at face value, the Act seems like adequately strong protection for the press but, reflecting on previous case law, the courts seem to have interpreted the three exceptions widely.

In the ‘interests of justice’ may be the greyest area of the Act, as it has proved to be applied by the courts more broadly than journalists would have hoped. For example, in The Assistant Deputy Coroner for Inner West London v Channel 4, Eady J said that disclosure in the interests of justice is likely to be ordered where information would ‘help to complete the picture’ and that objective may justify setting aside confidentiality for the sources. In X Ltd v Morgan Grampian, a journalist was tipped off by a phone call that Tetra, a company, was doing badly financially, but Tetra successfully applied for an injunction to stop publication and applied for an order for G to disclose his source. Tetra argued that the information was in a missing document, so they needed to take proceedings against the person who had it to get it back. The House of Lords agreed, holding that disclosure could be considered necessary in the interests of justice where it was necessary to enable someone to ‘exercise important legal rights and to protect themselves from serious legal wrongs’. The journalist refused to disclose his source, so was fined £5,000 for contempt of court.

However, the journalist took the issue to the European Court of Human Rights in Goodwin v UK. The European Court of Human Rights held that the order for disclosure and the fine were both a violation of the journalist’s freedom of expression. The court said that the House of Lords’ interference was lawful, as it pursued a legitimate aim, but it was not necessary in a democratic society to order the disclosure. The necessity for any fetter on this freedom should be proportionate to the legitimate aim pursued and, as such, an order to disclose a source cannot be compatible with Article 10, unless there is an overriding requirement in the public interest. Therefore, there is evidently a difficulty with the application of the law in this area and the exceptions contained within section 10 of the Act need to be more clear and specific, allowing the rules to be more certainly practised in stringently upholding the media’s freedom of expression.

Nevertheless, the media may be more concerned about the powers the police have in retrieving journalists’ private materials for their investigations. The police may require items such as photographs, notes, documents or video footage to help them acquire evidence for inquiries. However, journalists are likely to want to protect their materials from being seized, as people may be reluctant to speak to them or be recorded in the future if they think these materials are ending up in the hands of the police. In addition, a belief among groups that the press are assisting the police can put photographers and reporters at risk, such as during riots. In Sanoma Uitgevers BV v Netherlands, the European Court of Human Rights stressed the significance of this, ruling against Dutch prosecutors for requiring a publisher to hand over identifying photos to the police.

The Police and Criminal Evidence Act 1984 (PACE) states that journalistic material can only be seized if the police apply for an order under section 9 of the Act, provided that access conditions in schedule 1 of the Act are satisfied. The Act’s ‘special procedure’ seems to give materials useful protection but, in nearly every case, judges have found that the police’s need for evidence outweighed the arguments for protection, though some cases, such as R (BSkyB and others) v Chelmsford Crown Court, have been a welcome exception. Regardless of this, the police may go on a ‘fishing expedition’ to find powers to seize materials under a number of other pieces of legislation, such as the Terrorism Act 2000. As it can be imagined, anti-terrorism legislation grants the police with more freedoms to acquire materials than PACE, so the media appear to have little protection against this. Indeed, the relatively recent provisions of the Investigatory Powers Act 2016 grants safeguards in the use of police powers to hack or bug the electronic devices of people in ‘sensitive professions’, such as journalists, but there is no identifiable process to challenge this in court, unlike PACE, and there is growing unease that this protection is insufficient to guarantee the media’s freedom of expression.

In summary, the application of the law in protecting journalistic sources and materials appears to be mainly one-sided, as the courts have interpreted the provisions of legislation widely and allowed the rights of the media to be diminished. Before the law can be reformed, journalists should assert their beliefs over the matter of public interest journalism by arguing that disclosing sources and supplying materials could have a significantly chilling effect on investigative journalism. In this way, the press are effectively curtailed in their ability to execute their job and inform the public on important issues adequately and, as such, the media’s Article 10 right to freedom of expression is being severely limited.