Source protection, sometimes also referred to as source confidentiality or in the U.S. as the reporter's privilege, is a right accorded to journalists under the laws of many countries, as well as under international law. It prohibits authorities, including the courts, from compelling a journalist to reveal the identity of an anonymous source for a story. The right is based on a recognition that without a strong guarantee of anonymity, many would be deterred from coming forward and sharing information of public interest with journalists.
Regardless of whether the right to source confidentiality is protected by law, the process of communicating between journalists and sources can jeopardize the privacy and safety of sources, as third parties can hack electronic communications or otherwise spy on interactions between journalists and sources. News media and their sources have expressed concern over government covertly accessing their private communications. To mitigate these risks, journalists and sources often rely on encrypted messaging.
Journalists rely on source protection to gather and reveal information in the public interest from confidential sources. Such sources may require anonymity to protect them from physical, economic or professional reprisals in response to their revelations. There is a strong tradition of legal source protection internationally, in recognition of the function that confidential sources play in facilitating 'watchdog' or 'accountability' journalism. While professional journalistic practice entails multi-sourcing, verification and corroboration, confidential sources are a key component of this practice. Without confidential sources, many acts of investigative story-telling—from Watergate to the major 2014 investigative journalism project Offshore Leaks undertaken by the International Consortium of Investigative Journalists (ICIJ)—may never have surfaced. Even reporting that involves gathering opinions in the streets, or a background briefing often relies on trust that a journalist respects confidentiality where this is requested.
Relevance Due to the centrality of communication between journalists and sources to the daily business of journalism, the question of whether or not sources can expect to have their identity protected has significant effects on the ability of media to operate and investigate cases.Abramowicz, David. 2008. “Calculating the Public Interest in Protecting Journalists' Confidential Sources.” Columbia Journalism Review 108(8):1949–90. Retrieved March 1, 2019 (www.jstor.org/stable/40041814) If a potential source can expect to face legal retaliation or other personal harm as a result of talking to a journalist, they may be less willing to talk to the media.
Context Digital environment The digital environment poses challenges to traditional legal protections for journalists' sources. While protective laws and/or a reporter's commitment shielded the identity of sources in the analogue past, in the age of digital reporting, mass surveillance, mandatory data retention, and disclosure by third party intermediaries, this traditional shield can be penetrated.
Technological developments and a change in operational methods of police and intelligence services are redefining the legal classification of privacy and journalistic privilege internationally. With rapid technological advancement, law enforcement and national security agencies have shifted from a process of detecting crimes already committed, to one of threat prevention in the post-September 11 environment. In the digital age, it is not the act of committing (or suspicion of committing) a crime that may result in a person being subject to surveillance, but the simple act of using certain modes of communication—such as mobile technology, email, social networks and the Internet.
Journalists are now adapting their work in an effort to shield their sources from exposure, sometimes even seeking to avoid electronic devices and communications.
The cost of the digital era source protection threat is significant—in terms of digital security tools, training, reversion to more labor-intensive analogue practices, and legal advice. Such tactics may be insufficient if legal protections are weak, anonymity is forbidden, encryption is disallowed, and sources themselves are unaware of the risks. The impact of these combined factors on the production and scope of investigative journalism based on confidential sources is significant.
Where source protection is compromised, the impacts can include:
Pre-publication exposure of journalistic investigations which may trigger cover-ups, intimidation, or destruction of information, Revelation of sources' identities with legal or extra-legal repercussions on them, Sources of information running dry, Self-censorship by journalists and citizens more broadly.
Key issues
Source protection laws are at risk of being trumped by national security and anti-terrorism legislation that increasingly broadens definitions of 'classified information' and limits exceptions for journalistic acts, The widespread use of mass and targeted surveillance of journalists and their sources undercuts legal source protection frameworks by intercepting journalistic communications, Expanding requirements for third party intermediaries to mandatory retain citizens' data for increasingly lengthy periods of time further exposes journalistic communications with confidential sources Debates about digital media actors' entitlement to access source protection laws where they exist, while being more prominent in Western contexts, are intensifying around the world.
Definition Scholars,Russell L 2014, "Shielding the Media: In an Age of Bloggers, Tweeters, and Leakers, Will Congress Succeed in Defining the Term "Journalist" and in Passing a Long-Sought Federal Shield Act?" Oregon Law Review, 93, pp. 193-227 journalism organizations and press freedom advocacy groups have put a lot of effort in defining journalism in a way that it would allow the best possible protection of themselves and their sources. Many stakeholders have argued in favor of legal protections being defined in connection with 'acts of journalism', rather than through the definition of the professional functions of a journalist.
Some countries are broadening the legal definition of 'journalist' to ensure adequate protection for citizen reporters (working on and offline). This opens up debates about classifying journalists, and even about licensing and registering those who do journalism—debates that are particularly potent where there is a history of controls over press freedom.
Many legal definitions of 'journalist' have been evaluated as overly narrow, as they tend to emphasis official contractual ties to legacy media organizations, may demand a substantial publication record, and/or require significant income to be derived from the practice of journalism. This leaves confidential sources relied upon by bloggers and citizen journalists largely unprotected, because these producers of journalism are not recognized as 'proper journalists'. Such definitions also exclude the growing group of academic writers and journalism students, lawyers, human rights workers and others, who produce journalism online, including investigative journalism. This has bearing on a controversy in 2015 in which Amnesty International objected to having been a subject of surveillance.
In December 2013, the United Nations General Assembly adopted a resolution which outlined a broad definition of journalistic actors that acknowledged that: "...journalism is continuously evolving to include inputs from media institutions, private individuals and a range of organizations that seek, receive and impart information and ideas of all kinds, online as well as offline, in the exercise of freedom of opinion and expression".
In 2014, the Intergovernmental Council of UNESCO's International Program for the Development of Communications (IPDC) welcomed the UNESCO Director-General's Report on the Safety of Journalists and the Danger of Impunity, which uses the term 'journalists' to designate the range of "journalists, media workers and social media producers who generate a significant amount of public-interest journalism".
The Arabic Media Internet Network's Dauoud Kuttab does not want to limit entitlement to source protection to recognized journalists, but to extend it to citizens as well.Kuttab, D (2015) Qualitative interview conducted by Alexandra Waldhorn for UNESCO Internet Study: Privacy and Journalists' Sources Egyptian Media Studies Professor Rasha Abdullah said that source protection needs to be accessible to a broad range of communications actors: "It should apply to anyone who has information to expose, particularly in the age of digital media". For Arab Reporters for Investigative Journalism's (ARIJ) Rana Sabbagh, "There is a difference between reporting the news, writing an editorial, and being an activist".Sabbagh, R 2015 Qualitative interview conducted by Farrah Wael for UNESCO Internet Study: Privacy and Journalists' Sources
United States media lawyer Charles Tobin is also in favor of a broad definition of journalism as a response to the rise of citizen journalists and bloggers.Tobin, C, 2015 Qualitative interview conducted by Julie Posetti for UNESCO Internet Study: Privacy and Journalists' Sources In 2013, the USA's Society of Professional Journalists passed a unanimous motion that "strongly rejects any attempts to define a journalist in any way other than as someone who commits acts of journalism."
Moving the framework to a protection of "acts of journalism" rather than limiting it to the work of professional journalists is a conceptual shift, according to Josh Stearns in a 2013 report published by the advocacy group Free Press.
Issues The 'trumping effect' of national security/anti-terrorism legislation In 2007, David Banisar noted that: "A major recent concern ... is the adoption of new anti terrorism laws that allow for access to records and oblige assistance. There are also problems in many countries with searches of newsrooms and with broadly defined state secrets acts which criminalize journalists who publish leaked information".
The problem has grown in the intervening years, as a parallel to digital development, and occurs where it is unchecked by measures designed to preserve fundamental rights to freedom of expression and privacy, as well as accountability and transparency. In practice, Campbell considers that this leads to what can be identified as a 'trumping effect', where national security and anti-terrorism legislation effectively take precedence over legal and normative protections for confidential journalistic sources. The classification of information as being protected by national security or anti-terrorism legislation has the effect of increasing the reluctance of sources to come forward.
A 2008 Council of Europe (CoE) report stated: "Terrorism is often used as a talisman to justify stifling dissenting voices in the way that calling someone a communist or capitalist were used during the Cold War". According to the COE report, following the 2001 terrorist attacks, many European countries adopted new laws or expanded the use of old laws to monitor communications.