EFJ Policy Document on Protection of Sources

Introduction
The right to protection of journalistic sources is well recognized in international law. It has been
specifically recognized by the United Nations, Council of Europe, Organization of America
States, African Union, and the Organization for Security and Co-operation in Europe. The
European Court of Human Rights has found in several cases that it is an essential part of
freedom of expression.
A significant number of countries now recognize the protection of journalists sources. Nearly
100 countries have adopted specific legal protections for journalists sources either in laws or
constitutions. In at least 20 countries, those protections are absolute. Many countries also
recognize protection of sources in case law as common law or as a part of the constitutional
right of free speech.
In most countries with laws, there appear to be few cases where journalists are required to
disclose source information and there are better judicial ways to oppose such demands. The
right of protection of sources is more threatened in a number of jurisdictions without laws.
National security claims are also threatening protections in many nations. And the modern
communications technologies (emails, cellular phones etc.) are more and more revealing
themselves as the Achille's heal of journalistic sources' confidentiality.
However, the question remains crucial: is it preferable for journalists to keep in this context the
protection of their sources under the umbrella of their own ethical declaration (Declaration of
duties and rights of journalists and national or business-sized ethical declarations) which dont
grant them protection against any legal investigation, or should they try to get legal protection
of their sources knowing very well that extended exceptions to such a law or European
Directive can finally weaken real the protection of their sources?
The purpose of this document, initially inspired by the Silencing the sources report (*) is to
define basic criteria who should help member unions to decide whether its preferable or not
to get a law protecting the journalistic sources, and /or help them evaluate through a review of
existing legislation law proposals debated in various European Parliaments.
Why must journalistic sources be protected?
To be able to function as watch dogs of democracy, as put by the European Court of Human
Rights (ECHR), journalists must lean on protection of their journalistic sources. Some of those
sources are official and well-known, other confidential and secret. The protection of those
secret sources is essential, as protection of sources is the cornerstone of press freedom, as
the ECHR recalled it in the founding Goodwin case.

The most significant consequence of forcing journalists to disclose their sources is the
effect it will have on their ability to obtain information. Some sources will refuse to talk
to them for fear of being revealed. Other sources will not trust them as the journalists

reputation will be changed from that of an independent gatherer of information into that
of an arm of government.

Journalists could tend to avoid facing situations where they might be asked to disclose
their sources or other information that they gathered.

The only remaining sources of information could then be the official ones, controlled by
the political, economical, or judicial power

The most serious consequence that can result from the lack of source protection is the
physical endangerment of the journalist. Many journalists work in areas of extreme
danger such as war zones or investigation and reporting on dangerous crime. If a
journalist is considered an informant or a spy for the authorities or a future witness in a
trial, this may result in their being targeted. Therefore, The Council of Europe
recommended in 2007 that journalists not be required to hand over notes, photographs,
audio and video in crisis situations to ensure their safety. (Guidelines of the Committee
of Ministers of the Council of Europe on protecting freedom of expression and
information in times of crisis. Adopted by the Committee of Ministers on 26 September
2007 at the 105th meeting of the Ministers' Deputies)

The EFJ noticed the last years that in most European countries journalists were put more and
more under pressure to reveal their sources of information. In order to oppose this move, the
EFJ turned to the European Parliament, asking for a Directive on protection of sources. Should
such a Directive be discussed by the European MePs, the EFJ would have to follow the
debate very closely, with a special attention to the conclusions of this document.
Constitutional or legal protection of sources in Europe
Over the years, since its founding ruling in the Goodwin vs. the United Kingdom case (27
March 1996), the European Court of Human Rights (ECHR) has developed a constant and
strong jurisprudence in favor of protection of journalistic sources. The rulings have
accumulated over the years to confirm the rights of journalists not to disclose their informants'
identity (Volksuil vs the Netherlands, 22 November 2007; Financial Times and others vs the
United Kingdom, 15 December 2009; Sanoma Uitgevers vs the Netherlands, 14 September
2010; Telegraaf Media Nederland Landelijke Media vs the Netherlands, 22 November 2012) or
to condemn home-searches at journalists' houses or offices (Roemen and Schmitt vs
Luxembourg, 25 February 2003; Ernst and others vs Belgium, 15 July 2003, Tillack vs
Belgium, 27 November 2007; Martin and others vs France, 12 April 2012; Ressiot and others
vs France, 28 June 2012) and also to condemn indiction of harbourging stolen documents
(Fressoz
and
Roire
vs
France,
21
January
1999).
(see:
http://www.echr.coe.int/NR/rdonlyres/0856B8A0-D3A1-47B4-B9696250E84F9F3D/0/FICHES_Protection_des_sources_journalistiques_EN.pdf )

Approximately 100 countries around the world have adopted legal instruments on protection of
journalists sources. Nearly twenty (in Europe: Austria, the FYROM, Germany, Portugal,
Spain, and Sweden) have adopted constitutional protections while around 90 have adopted
specific provisions in their national laws including their press laws and criminal and civil
procedure codes. In Europe, Armenia, Belgium, Bosnia (in the shape of its law on
defamation), Cyprus, France, Iceland, Italy, Kosovo (also in the shape on its law on
defamation), Luxembourg, Malta, and Slovakia (in the Press code) adopted -some of them
after being condemned by the ECH laws or norms protecting on various grades the
journalistic sources.

In the United Kingdom, the journalists ability to protect their sources is quite firmly
established, due to their own efforts rather than to the law. But the confidentiality of
journalists' document has been strengthened by the ECHR judgements in the Goodwin vs
the UK case and further in the FT and others v. UK (see here above). But the recent
Leveson Report following the News of the World's scandal recommended that journalists may
be required to disclose data they gather, on request. And the NUJ opposed it, commenting that
whilst no doubt intended as improving transparency, the reality of this measure will serve to
add as a further barrier for sources and whistleblowers coming forward to speak out.
There are currently no specific legal protections in Ireland, the Netherlands, and Greece and
a number of smaller jurisdictions such as the Holy See and Andorra. In the Netherlands
however a pending law proposal could be reopened by the newly elected Parliament while in
Greece the courts' jurisprudence protects effectively the journalistic sources.
In the Belarus, where press freedom violations multiply, the protection of journalistic sources
is legally under heavy pressure as a law allows a court to command the sources' disclosure
according to the enquiry's or the cases' necessity.

Right or obligation?
A facet of the right to protect sources is whether the regulations on protection of sources are a
right or duty for the journalist.
A majority of laws provide that the right remains with the journalist rather than the source. But
some laws specifically prohibit the journalists from disclosing the source: in Sweden, the law
on freedom of the press makes it a criminal offence for journalists to disclose a confidential
source. In Latvia, the editor can be fined for revealing the identity of a source without
permission
What information is to be protected?
The need to protect sources is not just limited to protecting the identity of the person who
provided information. Most laws apply the protections to related information that may identify
the source. This includes things such as the content of information received and documents
received or other personal information such as phone records.
Another common request made to journalists is to provide unpublished materials including
notes, draft articles, unedited video and audio tapes. Often this material is not from a secret
source but the primary concerns about the potential effects on the free flow to information are
the same.
Which components for a law on protection of journalistic sources?
The various laws on protection of journalistic sources share different components:
To whom is the law applicable? (in other words: who is a journalist?)
What judicial actions is the law to prevent?
Which exceptions to the law can be agreed on?

To whom is the law applicable?

The Council of Europe's Recommendation Guidelines R(2000)7 provides a legal

protection for any natural or legal person who is regularly or professionally engaged in

the collection and dissemination of information to the public via any means of mass
communication
Several national laws have almost the same definition, defining by this who is a
journalist:
Any self-employed or non-self-employed person and any natural person who
contributes to the acquisition, editing, production and dissemination of
information by way of a medium in the public interest. (Belgium)
Any person working as a professional for one or several press companies, for
companies communicating on-line with the public, for broadcasting companies, or
fore one or several press agencies; and collecting information and disseminating it
to the public on a regular and paid way. (France)
the journalist and any other natural person regularly or professionally engaged
in the journalistic activity of seeking, receiving or imparting information to the
public, who has obtained information from a confidential source (Bosnia)

In some countries, only the acknowledged journalists (in possession of a press card)
can claim the benefit of laws on protection of journalistic sources.

In some other countries, journalists are not the only ones to benefit of laws on
protection of journalistic sources. It extends itself to:
Any person who exercising his/her functions can acquaint information allowing
to identify a source through the collecting, the processing, the production and
the diffusion of those information (Belgium)
Media owners, editors, copy editors and employees of a media undertaking or
media service (Austria)
Any employee of a publisher of a periodical and any employee of a press
agency as long she/he works for the agency or the newspaper (Slovakia)

2. What judicial actions is the law to prevent?

According to the ECHR, home searches in the journalists offices and houses
are a more drastic measure than the order to disclose information.

In Belgium and Luxembourg, searches are prohibited and the material

possibly gathered through such home-searches in violation on laws
protecting the journalistic sources mustn't be used during the judicial
inquiry
In Germany, the Constitutional Court rules in February 2007 that
searches of a newsroom violated the Constitutional protections on
freedom of the press because it disturbed the editorial work of the
magazine and threatened the confidentiality of editorial data.

In other countries, homes searches are allowed but then in a strictly limited area:

In France home searches in the building of a press company, of a

broadcasting company, or a company of on-line communication with the
public, of a press agencies, in the professional vehicles of those companies
or agencies, or at a journalist's home, when those investigations are linked to
his/her professional activities, can only be allowed by a magistrate. They

must be accompanied by a written and motivated magistrate's decision,

which must indicate the nature of the infringement on which the home search
are based as the object and the reasons justifying the home search. No
documents or objects related to other infringements as those mentioned in
the decision must be seized: such a seizure would be illegal. The magistrate
operating the home search must make sure that the conducted
investigations respect the free exercise of the journalist's profession and
don't breach the secret of sources.
In the UK, the Police and Criminal Evidence Act (PACE) set up a twotiered system. Under the first tier, there is an inter parties hearing before
a judge ordering a journalist to provide the information. The police must
show that the information has a substantial value to a serious arrestable
offense, other methods have been tried, and it is in the public interest.
Under the second tier, in an ex parte hearing, a judge can authorize the
search of premises. The request must be made by a senior officer and
the judge must find that either a production order has not been complied
with or that a request for one would not be practical or would seriously
prejudice an investigation.

The interception of communications or other types of surveillance such as

the communication of the detailed invoices of handy telephones to obtain
information about journalists sources

In Belgium and Austria law on protection of journalistic sources prohibits

such detection measure or investigative measure unless it is used to
prevent a crime against physical integrity and the conditions for
disclosure are met.
In Germany, the Criminal Code prohibits the use of acoustic surveillance
to violate the protection of sources. However, these protections do not
apply to telecommunications in cases of major crimes.
In Georgia, the interception of journalists communications to violate
professional secrets is a criminal offense.

Induction for concealing stolen information or for complicity of violation of

professional secret are often used by judicial authorities to bypass laws on
protection of journalistic sources.
The law in Belgium explicitly prohibits any pursuit on those
grounds against journalists who refuse to disclose their sources.

Induction for contempt of the court which exists in the Anglo-Saxon judicial
system
the law in Malta explicitly prohibits any pursuit on this ground
against journalists who refuse to disclose their sources.

3. What exceptions can be agreed on to a law on protection of sources?

A strict minimum of exceptions to a law protecting the journalistic sources

should be agreed on. If there are too many exceptions, indeed, the principle
protection of sources is empty

In Armenia, disclosure can only occur in cases where it is directly related

with a criminal case and only for the sake of clearance of heinous crimes
or highly heinous crimes, particularly if the need of public interest defence
and there are no more alternative means for defending the public
interests.
In Belgium the protections can only be overridden by a judge in cases
relating to serious threat to the physical integrity of a person, the
information is of crucial importance, and it cannot be obtained any other
way.
In Cyprus, exceptionally, a journalist who publishes information
concerning a penal crime it is possible to be obliged by the Court to
reveal his/her source, if the Court is convinced that all these three
preconditions are satisfied: 1) the information is directly related to the
penal crime 2) this information cannot be obtained any other way 3)
reasons of paramount and imperative public interest make necessary the
reveal of the information.
In Finland, the exception to the principle of protection of sources must
involve the violation of a crime punishable by imprisonment of six years or
more.
In France, the secret of sources can only be lifted when an imperative
preponderant of public interest justifies it and if the considered measures are
strictly necessary and proportionate to the legitimate pursued goal.
In Italy, according to the criminal procedure code, a judge in charge of a
criminal dossier can ask the journalist to reveal his/her informants identity
if the information is crucial to the resolution of the case and if the
informations authenticity can only be confirmed by the informants
identity.
In Lithuania, the protection cannot be absolute in vitally important cases
such as to protect the constitutional rights of a person because the harm
would be greater than the benefit.
In Luxemburg, the 2004 Law on the Freedom of Expression in the
Media, journalists can be forced to disclose a source where it involves the
prevention of crimes against individuals, drug trafficking, money
laundering, terrorism or state security.
In Malta, a discourse is requested in the interests of national security,
territorial integrity or public safety, or for the prevention of disorder or
crime or for the protection of the interests of justice
In Sweden, sources can only be disclosed in limited circumstances such
as breach of national security.
In Slovakia, the obligation of non-disclosure shall not apply in cases
where the law requires the prevention of the commission of a crime.
In the Czech Republic, a law prohibits to broadcast police wiretapped
recordings of people without their consent. As soon as Czech lawmakers
overturned the Senate's veto, the first journalist has been heavily fined
In Germany, the protections do not apply to telecommunications in cases
of major crimes.
In Hungary, if a source discloses a state secret (a very broad definition)
to a journalist, the journalist must inform the authorities or face criminal
penalties him (her) self.

Journalistic sources in danger

The war on terror is one of the major instigators of the leaks and the criminal

investigations. There is a growing concern that new laws on anti-terrorism are also
being used to undermine protection of sources. Dozens of countries have adopted laws
in recent years on antiterrorism and most give broad powers to search and seize
information and to conduct electronic surveillance without recognizing protections for
the media.
In Northern Ireland, there has been a trend for police to search and seize
journalists material under anti-terror laws that override the Police and Criminal
Evidence Act.
The UKs Official Secrets Act has been used often to both arrest journalists and
to prevent coverage of cases.

Data retention acts are another permanent threat to journalistic sources

The daily use of modern communication tools such as handy phones, or Internet
represents a danger to journalistic sources as all the data on those
communications are saved by Internet providers or phone companies.
You can protect all those data. If you want to know more about this, see
securityinabox.org

Whistle-blowers protection
In any discussion of the legal rights of journalists to protect their sources of information, it is
important to examine the dangers that the sources that are whistle-blowers face and what
legal rights they possess.
As the sources of the information, whistle-blowers and other sources often face serious
consequences if their role is disclosed either through legal processes or more commonly
through internal investigations. There is a symbiotic relationship between whistle-blowers and
journalists. Strong legal rights for whistle-blowers enhance journalists ability to gather
information by encouraging disclosures and strengthening rights of anonymity. Sources may
also be more willing to speak publicly to journalists if they believe they are legally protected.
A growing number of countries have adopted whistle-blower protection laws. These prevent
employers from sanctioning whistle-blowers in certain circumstances.
However, most of the laws relate to fighting corruption and do not protect whistle-blowers who
disclose to the media. Only in a few countries, laws protect both journalists and sources.
The Georgian Law on Freedom of Speech and Expression has a very strong protection of
sources provisions and also limits liability only to persons who are legally obliged to keep a
secret and the disclosure creates a direct and substantial danger to values protected by law.
They are not liable if the public interest in disclosure is greater than the harm. If their rights are
violated, they can demand damages.
Some countries recognize a constitutional right of anonymity as a part of free speech rights. In
Sweden, public employees have a constitutional right of anonymity to speak whatever they
wish. In Norway, the Governmental Commission on Free Expression specifically suggested
that the Constitution be amended to include protections for anonymous speech.
Conclusions
No recommendation should be made to the member-unions in favorr of a constitutional
provision or a law protecting the journalistic sources. However, they should be made aware
that violation of journalistic sources occurs more frequently in countries where no constitutional
or legal protection of sources is ensured.
Of course, when an informer allows the journalist to disclose his or her identity, the problem of
protection of sources disappears by itself

(*) http://www.privacyinternational.org/foi/silencingsources.pdf
Prepared by Philippe Leruth and Patrick Kamenka on behalf of the EFJ Steering Committee,
October 2008, March 2009.
Updated by Philippe Leruth, May 2014