Journalism and confidentiality of source

Ranjan Jyoti Sarma

(ranjan.sarma@ymail.com)

The right of journalists to use and protect confidential sources is a debated topic. Many journalists say that confidential sources are an essential tool in the search to uncover information of great public interest. The law in India is in a precarious state on a vital aspect of freedom of the press: the lack of statutory protection of a journalist's sources. The fundamental right to freedom of speech and expression includes press freedom. This covers an entire process from newsgathering, editorial judgement, publication and distribution of printed matter. Press freedom covers all four stages. Curb any of them and press freedom is curbed in its entirety. Of them all, the least understood is the scope of the first stage — the collection of news. It is a reporter's need and duty to protect the identity of the source of his information or else vital information of concern to the people in a democracy would be suppressed. Journalists regard the protection of sources as a matter of professional honour. In 1963, Lord Cyril Radcliffe inquired into a spy ring in the Admiralty. Two journalists refused to answer questions germane to the inquiry because they entailed disclosure of their sources. Their claim to protection of sources was rejected, and they went to prison.

In India, no law gives me the right to refuse to divulge my sources. Though the courts generally do not compel a journalist to reveal his sources, then again the journalist cannot claim the same as a right. To protect the freedom of speech and expression available to the media under Article 19, a journalist should not be compelled to reveal his sources. However, this protection is not given under any law in India. Though Section 15(2) of the Press Council of India Act does protect the journalist from revealing his sources it is only applicable to proceedings in front of the Press Council. No protection is available to the journalists before the Court. The Court can ask the media to reveal its source if it deems fit. There is no law regarding the disclosure of the source by the media. The authority which can ask the journalist to divulge the source is the Court. The Court can compel the journalist to reveal his source if the Court deems it necessary.

The circumstances in which the Court can compel the journalist to reveal the source is when the matter is of public concern. When the public interest is compelling and the disclosure outweighs the public interest then the sources can be revealed. The court can also require disclosure of the source of the news relates to a public office or public official and serious allegations have been made against him. Also if there is a defamatory article against a person then the Court may compel the journalist to reveal his source. In Jai Prakash Agarwal vs Bishambar Dutt Sharma, the Delhi high court directed the reporters of Jan Satta and Punjab Kesari to disclose their sources for a story alleging that a judicial verdict in an election petition had been fixed.

No law gives protection to the media for non-disclosure of the sources. As the prevalent norm, journalists are not compelled to disclose the source. But where the public interest is involved the journalist can be compelled by the competent Court to reveal its sources. No law gives the right to the journalist to refuse to divulge his sources. It is expected that the journalist will not disclose what has been obtained by them in confidence. But if the journalist is asked by the competent authority to disclose the source, he cannot refuse to do so. The uncertainty about journalistic privilege is not just in India, but also in a country like the UK which has a statutory provision protecting journalists from disclosing their sources. This is because the privilege codified in Britain is a very qualified one. The British law provides wide scope for denying source confidentiality "in the interests of justice or national security, or for the prevention of disorder or crime". The rationale of the privilege otherwise recognized around the world is that journalists will be unable to play the role of a watchdog unless they can guarantee confidentiality to their sources. It is a departure from the general rule that everybody has a legal obligation to give evidence. Twice in the last 30 years, the Law Commission of India recommended that this privilege be codified so that there is greater clarity on the subject. But successive governments have displayed little will to introduce any such amendment for fear of making the media more combative. As a result, the Indian Evidence Act has remained silent on the confidentiality of journalistic sources even as it confers privilege on other categories of communications such as those between a lawyer and his client. 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. 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.

The digital environment poses challenges to traditional legal protections for journalists' sources. While protective laws and/or a reporter's commitment to shield 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.

Where source protection is compromised, the impacts can include:

1. Pre-publication exposure of journalistic investigations may trigger cover-ups, intimidation, or destruction of information,

2. Revelation of sources' identities has legal or extra-legal repercussions,

3. Sources of information running dry,

4. Self-censorship by journalists and citizens.

There is widespread recognition in international agreements, laws and declarations that the protection of journalists' sources is a crucial aspect of freedom of expression.