A study raising concerns about journalists’ ability to protect sources and whistleblowers was launched in the House of Lords last Wednesday. The Institute of Advanced Legal Studies (IALS), in collaboration with the Guardian, has published the results of a research initiative into protecting journalists’ sources and whistleblowers in the current technological and legal environment.
Investigative journalists, media lawyers, NGO representatives and researchers were invited to discuss issues faced in safeguarding anonymous sources. The report: ‘Protecting Sources and Whistleblowers in a Digital Age’ is available online here.
The participants discussed technological advances which facilitate the interception and monitoring of communications, along with legislative and policy changes which, IALS believes, have substantially weakened protections for sources.
The sanctity of the source
The National Union of Journalists (NUJ) Code of Conduct requires that:
‘A Journalist protects the identity of sources who supply information in confidence and material gathered in the course of her/his work.’
Protection of sources is also enshrined in the Contempt of Court Act 1981, and in the Public Interest Disclosure Act 1998, which applies to whistleblowing. As the report recognises, those protections have been largely subsumed into Article 10 of the European Convention on Human Rights, which protects free speech.
Powers and protection under the law
IALS believes, however, that legal protection afforded to sources has been ‘honoured more in the breach’, pointing in particular to the court’s powers to make Norwich Pharmacal disclosure orders. These orders could require a journalist who is ‘mixed up’ in another’s wrongdoing to disclose information about their source (including their identity), for example when an employee has breached confidence by leaking sensitive company information to a newspaper.
The report highlights the state’s varied powers to obtain information, including under the Terrorism Act 2000 and the Police and Criminal Evidence Act (PACE) 1984. These acts attempt to balance source protection with the public interest in requiring disclosure in order to fight crime and administer justice. While the report describes confidential source protections under PACE as ‘reasonably strong’, the study is concerned that the Terrorism Act provides weaker protection.
However, the study’s true concern is that even those protections are eroded by contemporary technological and legal developments.
Technological advances and covert powers
The contributors believe that the legal safeguards in place are simply insufficient in the present circumstances, fearing that:
“ …legal protection against disclosure and delivery up orders are irrelevant if surveillance, retention of and access to communications data, or interception of communications allows investigating authorities an easy route to information.”
The report points at the Regulation of Investigatory Power Act (RIPA) 2000 which provides for the interception of communications and access to communications data, in some cases directly from internet service providers (ISPs). There is no specific mention in RIPA of protection for journalistic material, and although codes of practice have introduced safeguards in this respect, the IALS report remains concerned about the extent to which the codes are followed in reality.
IALS notes that a journalist may not know that covert powers have been used to obtain information until and unless they are used in legal proceedings. According to a 3-year review by the Interception of Communications Commissioner’s Office (IOCCO) in 2015, over 240 journalist sources’ communications data had been accessed between 2011 – 2014. Subsequent review of the lawfulness of such acts, the report says, is useless when the damage has already been done. If they are unable to guarantee anonymity, journalists fear that sources will be discouraged from providing information in the public interest.
The IALS panel discussed possible safeguards appropriate in the digital age, including legal privilege style protection for journalists, and a return to more traditional methods of gathering and storing information, such as face-to-face meetings, notebooks and post. Caution should be exercised with electronic methods for information gathering, such as drop-box systems, and the importance (and underuse) of encryption was noted.
What is a journalist and who owns the information?
The report also raised interesting issues around the definition of ‘journalist’ for the purposes of the legal framework. Do a blogger and her sources benefit from the same protection as a print journalist? When David Miranda, the partner of a Guardian journalist, was detained under the Terrorism Act while carrying sensitive material, was he acting as a ‘journalist’, a source, a whistleblower, or something else?
As to the ownership of information, while journalists own their notebooks and so can control their use, emails and electronic files are less straightforward. They may belong to the media organisation employing the journalist, and a disclosure order could be made against the company rather than the individual. The ownership of metadata is another unclear area. Metadata may ‘belong’ to the ISP, and the panel was concerned by its potential to allow sources, and even content, to be identified.
An update to the report published on 16 February brings the news of an amendment to the Digital Economy Bill currently going through Parliament, adding a defence to the disclosure of personal information where its publication for the purposes of journalism is in the public interest (currently at clause 37(2)(i)), a welcome development for IALS.
Finally, the update places the report in the current international context:
“Events – such as the disclosures leading to the resignation of US national security adviser Michael Flynn – highlight the value and importance to democratic debate of whistleblowing in the public interest” (see more here)
No report can keep pace with international developments in this area. Only last Friday (24 February) President Trump decried ‘dishonest’ journalists:
“They shouldn’t use sources. They should put the name of the person. You will see stories dry up like you’ve never seen before.”
While the future for anonymous sources is uncertain, the turbulent political, legal and technological climate guarantees the issue plenty of headlines to come.
Read the full report
Read the update here.
This post originally appeared on the UK Human Rights Blog and is reproduced with permission and thanks