Essay

Journalistic immunity

Print edition : March 30, 2018

Watergate reporters Carl Bernstein and Bob Woodward. Photo: AP

Mark Felt, former FBI Deputy Director, at his home in Santa Rosa, California with his daughter Joan Felt and grandson Nick Jones on May 31, 2005. Jones earlier read a statement to the press in which he confirmed that his grandfather was the informant Deep Throat, the legendary source who leaked Watergate scandal secrets to the Washington Post and helped bring down President Richard Nixon. Photo: LOU DEMATTEIS/REUTERS

When the interests of justice, national security and prevention of crime are not involved, the journalist’s rights to gather information and put it in the public domain and the right to not reveal sources become invincible.

ON February 6, 1852, The Times (London) wrote a devastating refutation of the Earl of Derby’s assertion which the newspaper reprinted a century later because its assertions were “as valid today as they were over 100 years ago”. Since the Earl’s claims are heard to this day, The Times’ retort is of abiding relevance.

It said: “The Earl of Derby remarked with considerable emphasis in his speech on the Address that as in these days the English press aspires to share the influence of statesmen, so also it must share in the responsibilities of statesmen. … The purposes and the duties of the two powers are constantly separate, generally independent, sometimes diametrically opposite. The dignity and the freedom of the press are tramelled from the moment it accepts an ancillary position. To perform its duties with entire independence, and consequently with the utmost public advantage, the press can enter into no close or binding alliances with the statesmen of the day, nor can it surrender its permanent interests to the convenience of the ephemeral power of any government.

“The first duty of the press is to obtain the earliest and most correct intelligence of the events of the time, and instantly, by disclosing them, to make them the common property of the nation. The statesman collects his information secretly and by secret means; he keeps back even the current intelligence of the day with ludicrous precautions, until diplomacy is beaten in the race with publicity. The press lives by disclosures; whatever passes into its keeping becomes a part of the knowledge and the history of our times; it is daily and for ever appealing to the enlightened force of public opinion—anticipating, if possible, the march of events—standing upon the breach between the present and the future, and extending its survey to the horizon of the world. The statesman’s duty is precisely the reverse.”

Duty in the public interest

In this day and age, it is accepted that the press performs a duty in the public interest. In Houchins vs KOED Inc 438 U.S. 1(1973), the United States Supreme Court held that “terms of access that are reasonably imposed on individual members of the public may, if they impede effective reporting without sufficient justification, be unreasonable as applied to journalists who are there to convey to the general public what the visitors see”.

In 1980, in the famous Richmond Newspapers case, a near-unanimous Supreme Court upheld this view. Chief Justice Warren Burger said: “Instead of acquiring information about trials by first-hand observation or by word of mouth from those who attended, people now acquire it chiefly through the print and electronic media. In a sense, this validates the media claim of functioning as surrogates for the public. While media representatives enjoy the same right of access as the public, they often are provided special seating and priority of entry so that they may report what people in attendance have seen and heard.” ( Richmond Newspapers Inc vs Virginia 448 U.S. 555 (1980).)

Chief justice Burger spoke for a unanimous court when he said: “It is not crucial whether we describe this right to attend criminal trials to hear, see, and communicate observations concerning them as a ‘right of access’, …or a ‘right to gather information’, for we have recognised that ‘without some protection for seeking out the news, freedom of the press could be eviscerated’.” ( Branzburg vs Hayes, 408 U.S.665, 681 (1972).)

That protection is conferred on the press by the fundamental right to freedom of speech and expression embodied in the Constitution of every democracy. Its ambit is wide, as Article 19(2) of the International Covenant on Civil and Political Rights clearly indicates: “this right shall include freedom to seek, receive and impart information”. One analogy and one illustration suffice to establish the need for protection of news gathering. Section 125 of the Indian Evidence Act, 1872, says: “No Magistrate or police officer shall be compelled to say whence he got any information as to the commission of any offence…” The reason is obvious. Detection of crime depends a lot on information provided in confidence by a network of informants. They would cease to provide the information if their names were divulged. The same holds good, surely, in journalism, especially investigative journalism.

Protecting news sources

The best illustration is the exposure of Watergate. Bob Woodward and Carl Bernstein would not have been able to accomplish that if they had been compelled to disclose the identity of the legendary “Deep Throat”. He was none other than the Federal Bureau of Investigation’s (FBI) Associate Director, W. Mark Felt. (See Beverly Gage’s recall of the case in the article “The Setup for another Deep Throat”; The New York Times, International Edition; May 12, 2017.)

The rule against disclosure is now accepted. The Code of Practice drawn up by the newspaper industry in the United Kingdom, for enforcement by the Press Complaints Commission, provided in paragraph 16: “Journalists have a moral obligation to protect confidential sources of information.” Section 10 of the United Kingdom’s Contempt of Court Act, 1981, says: “No court may require a person to disclose, nor is any person guilty of contempt of court for refusing to disclose the source of information contained in a publication for which he is responsible unless it be established to the satisfaction of the court that disclosure is necessary in the interest of justice or national security or for the prevention of disorder or crime. It must be necessary for any of these four ends.”

The Law Commission of India, in its Ninety-Third Report on Disclosure of Sources of Information by Mass Media, submitted to the Government of India on September 9, 1983, considered this question at some length in the light of legal developments in the law in Britain, the United States and elsewhere and recommended the insertion of an explicit provision in the Indian Evidence Act, 1872 (Section 123A), in recognition of the right. It reads as follows: “132A. No court shall require a person to disclose the sources of information contained in a publication for which he is responsible, where such information has been obtained by him on the express agreement or implied understanding that the source will be kept confidential.”

The Press Council of India Act, 1978, also contains an explicit provision on the protection of sources in inquiries by the council. Section 15(2) reads thus: “15(2) Nothing in sub-section (1) shall be deemed to compel any newspaper, news agency, editor or journalist to disclose the source of any news or information published by that newspaper or received or reported by that news agency, editor or journalists.” Parliament’s endorsement of the principle is clear.

British case law evolved over time. In British Broadcasting Corporation vs Granada Television Ltd. (1981) AC 1096, the court was faced with an extreme case where 250 sheets of confidential documents, many of them marked “Secret”, were taken by an employee of the BBC and, in breach of his duties of confidentiality to his employers, given to Granada Television. The documents were the property of the BBC. In the House of Lords, it was accepted by all the Lords in the majority, who held that Granada television was bound to disclose the name of the informer and that not in all the cases would disclosure be ordered.

Viscount Dilhorne observed: “It is not in every case that a journalist will be ordered to disclose his source. There must have been some wrongdoing in which the journalist has become involved and, where that is established, a judge must be satisfied that the interests of justice require him to exercise his discretion in favour of making such an order.”

In a powerful dissent, Lord Salmon said: “It has been accepted for over a hundred years that if this immunity did not exist, the press’s sources of information would dry up and the public would be deprived of being informed of many matters of great public importance; this should not be allowed in any free country.” Lord Salmon expressly approved the following observations made in this case by Lord Denning in the Court of Appeal:

“The newspapers are the agents so to speak of the public to collect information and to tell the public of it. In support of this right of access, the newspapers should not in general be compelled to disclose their sources of information. Neither by means of discovery before trial. Nor by question or cross-examination at the trial. I would add save in exceptional circumstances. Nor by subpoena. (Summons). The reason is because, if they were compelled to disclose their sources, they would soon be bereft of information which they ought to have. Their sources would dry up. Wrongdoing would not be disclosed. Charlatans would not be exposed. Unfairness would go unremedied. Misdeeds and I would add serious faults, and mistakes in the corridors of power, in companies or in governmental departments would never be known.

“Investigative journalism has proved itself as a valuable adjunct of the freedom of the press… It should not be unduly hampered or restricted by the law. Much of the information gathered by the press has been imparted to the informant in confidence. He is guilty of a breach of confidence in telling it to the press. But this is not a reason why his name should be disclosed. Otherwise much information that ought to be made public will never be made known. Likewise with documents. They may infringe copyright. But that is no reason for compelling their disclosure.”

Lord Denning ignored these very considerations, which he had so eloquently summed up, when he ruled against Granada. Two years later in his book, What Next in the Law, he commented on the case in these terms:

“I think Again: On consideration, therefore, I think that in cases of investigative journalism, save in most exceptional circumstances, the newspaper or television company ought not to be ordered to disclose the source of information: first, because it impedes the flow of information concerning matters of public interest; and second, because such an order is apt to be mere brutum fulmen which Addison in the Spectator described as ‘an empty noise, when it has not the sound of the Oaken Plant in it’.

“As I go through the proofs [of the book], we have a welcome decision in Attorney General vs Lundin (1982) Times, 20 February. Mr Jack Lundin, a journalist, got some information about a casino. He did a valuable piece of investigative journalism. He exposed the wrongdoings of the casino. It was published in Private Eye. As a result, the casino lost its licence. A police sergeant was prosecuted. The judge ordered the journalist to give the source of his information. He refused. The attorney general applied to commit the journalist. The divisional court acquitted him, because it was not “necessary” to know the source. The decision was … based on the common law. I anticipate that in future it will be very rare for a journalist to be ordered to name his source.”

It is unnecessary to consider the major cases that followed since the European Court of Human Rights exposed the fallacy in British logic ( see Re: An Inquiry under the Company’s Securities Insider Dealing Act 1988 (1988) Appeal Cases 660) and Director of Prosecutions vs Channel Four Television Co. Ltd and Anr (1993) 2 All England Reports 517).

An illustrious case

This brings us to the case which set aright the trend of English cases. On April 4, 1990, the House of Lords ruled against William Robin Goodwin, a trainee journalist employed by the publishers of The Engineer. On March 1, 1994, the European Commission of Human Rights pronounced in his favour (by 11 to 6 votes). On March 27, 1996, the European Court of Human Rights also ruled in his favour (11-7).

The facts were simple. A highly confidential draft business plan was stolen from Tetra Ltd. An unidentified source telephoned Goodwin and gave him information from the stolen plan. He wrote an article and called Tetra to check certain facts. They had an injunction slapped on the publishers, restraining publication of the article, and applied for an order requiring them and Goodwin to disclose the source and his notes of the telephone conversation. The publishers did not know the source and could not coerce Goodwin to disclose it, either. Justice Hoffman granted the orders sought. The Court of Appeal varied it by giving him the option of disclosure of the notes or their delivery to the court in a sealed envelope until determination of the appeal. He declined, whereupon his appeal was dismissed. The House of Lords held unanimously that the court had jurisdiction to make the orders requiring disclosure of the source’s identity.

The European Court of Human Rights cited Article 10 of the European Convention on Human Rights on freedom of speech, which permits “restrictions … as are prescribed by law and are necessary in a democratic society in the interests of national security … public safety, for the prevention of disorder or crime…” They must be “necessary”.

The court at Strasbourg said: “Protection of journalistic sources is one of the basic conditions for press freedom, as is reflected in the laws and the professional codes of conduct in a number of contracting states and is affirmed in several international instruments on journalistic freedoms (see, amongst others, the Resolution on Journalistic Freedoms and Human Rights, adopted at the 4th European Ministerial Conference on Mass Media Policy (Prague, 7-8 December 1984) and Resolution on the Confidentiality of Journalists’ Sources by the European Parliament, 18 January 1994 (Official Journal of the European Communities No. C 44/34). 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 to provide accurate and reliable information may be adversely affected. Having regard to the importance of the protection of journalistic sources for press freedom in a democratic society and the potentially chilling effect an order of source disclosure has on the exercise of that freedom, such a measure cannot be compatible with Article 10 of the Convention unless it is justified by an overriding requirement in the public interest.”

The true test is an interest “overriding” the public interest in the confidentiality of the source. The European Court noted that the danger to Tetra Ltd. was “neutralised by the injunction” against publication. An “additional restriction on freedom of expression”, entailed by the disclosure order, was not justified. The unidentified source was free to circulate the document privately.

In sum, there was not, in the court’s view, a reasonable relationship of proportionality between the legitimate aim pursued by the disclosure order and the means deployed to achieve that aim. The restriction which the disclosure order entailed on the applicant journalist’s exercise of his freedom of expression cannot therefore be regarded as having been necessary in a democratic society. [ Goodwin vs U.K. (1996) 22 European Human Rights Reports 123.]

In their excellent work Media Law (Penguin Books 2000, fourth edition), the celebrated human rights barrister Geoffrey Robertson, Q.C and Andrew Nicol, Q.C analyse the basic difference between the British and European approaches. “The importance of the Strasbourg decision in Goodwin vs U.K., which held that the approach of the English courts (exemplified by Lord Bridge’s ‘balancing act’) had led to a breach of the Convention, is that it recognises the crucial importance of news-gathering as such to freedom of expression, and so casts that mantle of Article 10 protection over sources—whether high-minded or malicious and whether revealing front page iniquity or run-of-the-mill facts worth only a passing mention on the inside page. The European Court was unimpressed by Lord Bridge’s balancing act: it pointed out that Article 10 jurisprudence would generally ‘tip the balance of competing interests in favour of the interest of democratic society in securing a free press’. Thus the claimant’s various interests, in eliminating the threat in its midst, in staunching the leak, in unmasking a disloyal aid or obtaining damages did not, even cumulatively, ‘outweigh the vital public interest in the protection of the applicant’s source’. That would need ‘an overriding requirement in the public interest’ which could not be found in Goodwin’s case: the employee was substantially protected against further disclosure of his business plan by the injunction.”

Qualified privilege

In Gaddafi vs Daily Telegraph, the Court of Appeal applied it directly to permit journalists to protect their sources even when asserting that they were so reliable there was a “qualified privilege” in communicating their information (pages 263-4). The authors note the implications of the case. The Court of Appeal considered this problem in Gaddafi vs Telegraph Group. The eldest son of Colonel Gaddafi, dictator of Libya, sued the newspaper over a story alleging his involvement in attempts to breach economic sanctions imposed as a result of the Lockerbie bombing. The Sunday Telegraph was permitted to enter a defence of qualified privilege, and to plead that its sources included members of a “Western government security agency”, whose lives could be at risk if their identities were disclosed. The court upheld the right of journalists to protect the confidentiality of their source whilst maintaining a qualified privilege defence, so long as sufficient disclosure was provided to enable some evaluation of the status and reliability of their information.

The authors remark: “ Gaddafi is a valuable ruling for investigative journalists, whose process of deduction is often assisted by sources who would be exposed to danger or embarrassment if named, and to whom confidentiality must be promised as a condition of assistance. It enables defendants to claim the privilege, on condition that they provide enough detail to have claims for source reliability tested under cross-examination.” ( Gaddafi vs Telegraph Group Ltd (2000) EM.LR. 431.)

The U.N. War Crimes Tribunal accepted the right to protection of source. Marlise Simons of The New York Times’ report in The International Herald Tribune of December 13, 2003, says: “The U.N. war crimes tribunal has granted special legal protection to reporters working in areas of conflict, saying that they would be required to testify before the court only under exceptional circumstances.

War correspondents as witnesses

“In handing down their ruling Wednesday, the judges also annulled an earlier court order for an American reporter to appear as a witness against his will. ‘This will go down in the line of other important decision dealing with press freedom’, said Geoffrey Robertson, The Washington Post’s lead counsel.

“It was the first time that limited legal protection for reporters was defined and upheld in a modern war crimes court, according to lawyers at the tribunal. They said that the ruling would almost certainly set the standard in other ad hoc tribunals, and, most important, it was likely to define relations between war correspondents and the new International Criminal Court. Numerous news organisations have argued that requiring testimony from reporters who work in conflict zones could hamper their work and endanger their lives.

“Five judges, from France, Guyana, Turkey, Sri Lanka and the United States, agreed. In a unanimous decision, they said that to subpoena a war correspondent the evidence sought must be ‘of direct and important value in determining a core issue in the case’ and ‘cannot reasonably be obtained elsewhere’. The decision was triggered by Randal’s refusal to testify about a 1993 interview with a former Bosnian Serb political leader, Radoslav Brdjanin, now being tried on genocide charges.

“Floyd Abrams, a New York lawyer who represented news organisations at a hearing in October, said journalists could not ‘have access to people if these people believe journalists will testify against them’.

The Lord Chief Justice Lord Woolf recognised “The fact that journalists’ sources can be reasonably confident that their identity will not be disclosed makes a significant contribution to the ability of the press to perform their role in society of making information available to the public.” ( Ashworth Hospital Authority vs MGN Ltd (2000) 4 All England Reports 193 at page 210 in the House of Lords.)

The German Constitutional Court “held without hesitation that press freedom covers the confidentiality of sources”. (Eric Barendt, Freedom of Speech, Oxford University Press, second edition, 2005, pages 439-440.)

The State of Case-law in the U.S. is none too certain. The leading case is that of Branzburg vs Hayes (408 US 665) decided in 1972. The court was evenly split. Four justices, namely, Chief Justice Burger and Justices White, Blackmun and Rehnquist, held that the First Amendment (guarantee of free speech) does not accord a newsman privilege against appearing before a grand jury and answering questions as to either the identity of his news sources or information which he has received in confidence. Justice William Douglas dissented on the ground that a newsman has an absolute right not to appear before a grand jury. Justice Stewart, joined by Justice Brennan and Justice Marshall, dissented on the ground that before a newsman is asked to appear before a grand jury and reveal confidences, the government must show: (1) probable cause to believe that the newsman has information clearly relevant to a specific probable violation of law; (2) that the information cannot be obtained by alternative means less destructive of First Amendment rights; and (3) a compelling and overriding interest in the information.

Justice Powell, while concurring in the court’s opinion, filed a separate judgment emphasising the limited nature of the court’s decision. His judgment, therefore, is the governing judgment of the court. He said: “I add this brief statement to emphasise what seems to me to be the limited nature of the court’s holding. The court does not hold that newsmen, subpoenaed to testify before a grand jury, are without constitutional rights with respect to the gathering of news or in safeguarding their sources. … If the newsman is called upon to give information bearing only a remote and tenuous relationship to the subject of the investigation, or if he has some other reason to believe that his testimony implicates confidential source relationships without a legitimate need of law enforcement, he will have access to the court on a motion to quash and an appropriate protective order may be entered.

“The asserted claim to privilege should be judged on its facts by the striking of a proper balance between freedom of the press and the obligation of all citizens to give relevant testimony with respect to criminal conduct.”

Three of the four dissenters called Justice Powell’s opinion “enigmatic”. It was not in line with the court’s tradition. In New York Times vs United States (403) U.S. 713 at p. 717 Justice Black said: “The press was protected so that it could bare the secrets of government and inform the people.” Justices Stewart, Brennam and Marshall’s dissent was principled and realistic. They held: “A corollary of the right to publish must be the right to gather news. The full flow of information to the public protected by the free-press guarantee would be severely curtailed if no protections whatever were afforded to the process by which news is assembled and disseminated. We have, therefore, recognised that there is a right to publish without prior governmental approval....

“No less important to the news dissemination process is the gathering of information. News must not be unnecessarily cut off at its source, for without freedom to acquire information the right to publish would be impermissibly compromised. Accordingly, a right to gather news, of some dimensions, must exist.…

“The right to gather news implies, in turn, a right to a confidential relationship between a reporter and his source. This proposition follows as a matter of simple logic once three factual predicates are recognised: (1) newsmen require informants to gather news; (2) confidentiality—the promise or understanding that names or certain aspects of communications will be kept off the record—is essential to the creation and maintenance of a news-gathering relationship with informants; and (3) an unbridled subpoena power—the absence of a constitutional right protecting, in any way, a confidential relationship from compulsory process—will either deter sources from divulging information or deter reporters from gathering and publishing information.

“It is obvious that informants are necessary to the news-gathering process as we know it today. If it is to perform its constitutional mission, the press must do far more than merely print public statements or publish prepared handouts. Familiarity with the people and circumstances involved in the myriad background activities that result in the final product called ‘news’ is vital to complete and responsible journalism, unless the press is to be a captive mouthpiece of ‘newsmakers’.

“It is equally obvious that the promise of confidentiality may be a necessary prerequisite to a productive relationship between a newsman and his informants. An office-holder may fear his superior; a member of the bureaucracy, his associates; a dissident, the scorn of majority opinion. All may have information valuable to the public discourse, yet each may be willing to relate that information only in confidence to a reporter whom he trusts, either because of excessive caution or because of a reasonable fear of reprisals or censure for unorthodox views. The First Amendment concern must not be with the motives of any particular news source, but rather with the conditions in which informants of all shades of the spectrum may make information available through the press to the public.”

The cause of free speech is not helped by the kind of unqualified protection that Justice Douglas urged. There are no absolute rights. A journalist who is witness to a crime is as bound to depose to what he saw and heard as any other citizen. His rights as a journalist are also qualified. Section 10 of U.K. Contempt of Court Act, 1987, leaves it to the court to decide. However, the tests are precisely defined—the interests of justice, national security, and prevention of crime. Where none of these is involved, the journalist’s rights become invincible. He cannot be compelled to disclose his sources in other cases; for instance, even Cabinet deliberations; discussions within any institution, be it the judiciary; or between any two institutions—the executive and the judiciary. The people have a right to know. The press acts on the people’s behalf.

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