Should journalists have privileges? Part One: Journalists and Citizens – Hugh Tomlinson QC

The boundary between the journalist and the citizen is becoming increasingly blurred.   As the mainstream media downsizes, the “citizen journalist” has become an increasingly important figure.   On one view, the absence of clear boundaries between journalist and citizen is a positive, democratic, development.  Freedom of expression is something that everyone enjoys – it has the same positive social benefits whether exercised by a “journalist” or anyone else.

As Binnie J said in a recent case in the Supreme Court of Canada

“ the protection attaching to freedom of expression is not limited to the “traditional media”, but is enjoyed by “everyone”… who chooses to exercise his or her freedom of expression on matters of public interest whether by blogging, tweeting, standing on a street corner and shouting the “news” at passing pedestrians or publishing in a national newspaper” R. v. National Post, 2010 SCC 16 [40]

This absence of the boundaries accords with the traditional view of the English law that journalists stand in the same legal position as everyone else.  For example, the common law provided very limited protection of journalistic sources.  In England this was limited to the so-called “newspaper rule”: permitting newspapers to refuse to disclose their sources before the trial.  But there was no general protection for sources.

The position was the same at common law in the United States. In Branzburg v Hayes (1972) 408 U.S. 665 the US Supreme Court rejected a claim for a journalistic privilege in testimony before Grand Juries, holding that “reporters, like other citizens [must] respond to relevant questions put to them”. There is still no Federal law protecting journalist’s sources in the US – although 33 states now have so-called “shield laws” (see Kathleen Ann Ruane’s recent paper Journalists’ Privilege: Overview of the Law and Legislation in Recent Congresses).

Similarly, the European Convention on Human Rights makes no reference to the media or to journalists.   In general, the right to freedom of expression and the protections which it provides apply to “everyone”.  Under the literal terms of the Convention, journalists are in no better (or worse) position than anyone else.

The position has, of course, changed considerably over the past thirty years. The case law of the European Court of Human Rights has consistently recognised the ‘essential function the press fulfils in a democratic society’. The special role of the media in a democratic society has been emphasised in many cases, particularly in reporting ‘information and ideas on political issues and other matters of general interest’ (see, for example De Haes and Gijsels v. Belgium, (1998) 25 EHRR 1, [37]).  The Court of Human Rights has repeatedly emphasised that it is incumbent on the press

to impart information and ideas on matters of public interest. Not only does the press have the task of imparting such information and ideas: the public also has a right to receive them. Were it otherwise, the press would be unable to play its vital role of ‘public watchdog’ (Observer and Guardian v United Kingdom (1992) 14 EHRR 153, [59(b)]).

It has, as a result, been made clear that ‘the safeguards to be afforded to the press are of particular importance’. The Court has repeatedly recognised an emphasised the importance of an Article 10 right to protection of journalist’s sources (see, most recently, Sanoma Uitgevers B.V. v. the Netherlands, Judgment of 14 September 2010).

In England there is now statutory protection for journalists in a number of situations. Section 10 of the Contempt of Court Act 1981 provides that, save in limited circumstances, a person cannot be required to disclose “the source of information contained in a publication for which he is responsible”. The Police and Criminal Evidence Act 1984 provides a special regime for the police when they wish to obtain “journalistic material” – “that is material acquired or created for the purposes of journalism”.

There has, however, been very little analysis as to how far these protections and privileges extend.  Most of the cases have involved individuals who are obviously “journalists” – individuals employed by national newspapers or broadcasters.  The Courts have not sought to provide any definition or analysis of the term “journalist” in this context.

The provision of protection for journalists brings us back to the point as to whether a distinction should be made between “journalists” and “citizens” at all.    There is a general consensus that serious investigative journalists need legal protection.  In a recent post on this blog Alex Bailin QC argued that there should be a “general public interest defence” for the media to relevant criminal offences, especially those aimed at protecting privacy.   But how is the “media” to be defined for the purpose such a defence?

Despite the rise of the “citizen journalist” the law cannot sensibly extend “journalistic privileges” to everyone who is writing or investigating for possible publication.   On the one hand, such a person may be conducting a serious public interest investigation (whether they are employed by a media organisation or not).  On the other, the writer or investigator may be a malicious or criminal individual – someone seeking to promote racial hatred or harass their enemies or commercial rivals.   A distinction needs to be drawn.  How can it be done?

The problem, and a potential solution, can be illustrated by the new regime for reporting the family courts.  This gives “duly accredited representatives of news gathering and reporting organisations” a right to attend private hearings in “family proceedings” (FPR 2010 r.27.11(2)).  This right is denied to ordinary members of the public.  The rules seek to strike a balance between making proceedings completely public and allowing limited access to the media.

How then are the media defined in this context?   The solution suggested is a pragmatic – and not entirely satisfactory – one.   What the courts will recognise is accreditation under the “UK Press Card scheme”.  This is run by a voluntary body, the UK Press Card Authority. This comprises 16 “gatekeepers”: national organisations which represent journalists and other media personnel (employed or freelance) whose work involves gathering material for editorial publication in all media — print, broadcast and electronic. The gatekeepers issue cards to their members or to those they represent and are responsible for ensuring that the conditions are adhered to.

In other words, a “journalist” is someone who is employed by a media organisation.  This accords with the definition of the word “journalist” provided by the Oxford English Dictionary: a person employed to write or edit a newspaper or journal.   The Press Card scheme includes anyone who is a member of a relevant professional body.  It seems both too wide and not wide enough.  It includes anyone who happens to work for one of the listed organisations – however irresposible and ill intentioned.  It does not include serious bloggers – who often research public interest topics with greater care than national media organisations.

In the second part of this post I will consider how a new regulatory regime could provide a way of deciding who is a journalist what privileges could properly be extended to those fall within this category.