promise of confidentiality will not be
As a result, the vital public-watchdog
trusted by other sources in the future.
role of the press may be undermined
For this reason, journalists will protect
and the ability of the press to provide
their sources, even if it means facing
accurate and reliable information
contempt of court.
may be adversely affected. Having
The rationale for recognizing a re-
regard to the importance of the
porter’s privilege was persuasively set
protection of journalistic sources
forth by the European Court of Human
for press freedom in a democratic
Rights (ECtHR) in Goodwin v. United
society and the potentially chilling
Kingdom (1996). The case involved re-
effect an order of source disclosure
porter William Goodwin, who had re-
has on the exercise of that free-
ceived a company’s confidential financial
dom, such a measure cannot be
information from a source whose identi-
compatible with Article 10 of the
ty he had agreed to keep secret. The
Convention unless it is justified by
company claimed that the material had
an overriding requirement in the
been stolen and obtained an injunction
public interest.
restraining publication of the informa-
tion, as well as an order under the Con-
All countries that are parties to
tempt of Court Act to compel Goodwin
ECHR are bound by the Goodwin deci-
to reveal his source’s identity “in the in-
sion, but the decision has been influen-
terests of justice” so that it could take
tial even outside the European Union.
legal action against the source.
Other international and regional bodies,
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[ M e d i a L a w | H a n d b o o k ]
including the Inter-American Commis-
whatever reason, need to conceal their
sion on Human Rights and the African
identity.” Although it declined to find an
Commission on Human and People’s
absolute privilege governing all confiden-
Rights, have issued declarations recog-
tial communications obtained in the
nizing the right of journalists to main-
course of reporting, the court neverthe-
tain the confidentiality of their sources
less recognized that the contempt power
and unpublished information.
should be used only as a last resort, mind-
In some countries, the journalist’s
ful of the competing rights at stake.
privilege is included in the constitution.
Some other nations have by statute
For example, the Constitution of Palau
granted journalists a privilege to avoid
says, “No bona fide reporter may be re-
testifying under specified circumstances.
quired by the government to divulge or
About 20 countries have adopted legisla-
be jailed for refusal to divulge informa-
tion giving journalists absolute rights to
tion obtained in the course of a profes-
protect their sources, among them Mexi-
sional investigation.” Sweden’s Freedom
co, Indonesia, Mozambique, and Turkey.
of the Press Act, which is part of the na-
More common are national laws that rec-
tional constitution, provides an expan-
ognize a qualified privilege, which may
sive privilege for journalists, subject only
be overcome under certain situations.
to a limited number of exceptions, such
Armenia, for example, grants the privi-
as if the source is suspected of espionage
lege but withdraws it in cases where the
or treason, or if an accused person dem-
information sought is directly related to
onstrates that the information sought is
a heinous criminal case when the public
essential for her defense in a criminal
interest in disclosure is strong. In some
case. The law also provides that a jour-
countries, including Germany and the
nalist who reveals a source without con-
United States, statutory protection has
sent may be prosecuted.
been left to the individual states. Like
In other countries, courts have ruled
the national laws, these statutes can be
that the journalist’s privilege may be de-
either absolute or qualified in scope.
rived from constitutional provisions. In
In the United States, although 39
2006 in Japan, for example, the Supreme
states, plus the District of Columbia,
Court found that Article 21 of the consti-
have enacted journalists’ shield laws,
tution, which guarantees freedom of ex-
Congress has considered, but has failed
pression, also protects “the freedom of
to pass (as of summer 2010), federal leg-
gathering news,” as well as the reporting
islation recognizing a reporter’s privi-
of news. In Canada in 2008, the Ontario
lege. This means that state shield laws
Court of Appeal struck down a finding of
apply in some state court proceedings
contempt against a reporter who refused
but not in the federal court system. (For
to disclose the source of leaked confiden-
further information on the roles of fed-
tial municipal investigative reports con-
eral and state laws and court systems,
cerning a nonprofit nursing home. It ruled
see Outline of the U.S. Legal System,
that the right to protect confidential
http://www.america.gov/publications/
sources is an essential part of freedom of
books/outline-of-u.s.-legal-system.)
expression as recognized under the Cana-
Although each society will work out
dian Charter of Rights and Freedoms.
the precise contours of a journalistic
“The likely effect of revealing a journal-
privilege against compelled disclosure
ist’s confidential source,” the court said,
of information, an effective privilege
“would be to discourage from coming for-
would supply broad answers to the fol-
ward other potential sources who, for
lowing questions:
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[ a F r a m e w o r k f o r a F r e e P r e s s ]
� To whom does it apply? A broad
freedom? In cases involving national se-
privilege would apply to anyone
curity, for example, government authori-
who is practicing journalism—
ties often argue that preserving public
meaning anyone involved in the
safety outweighs protecting editorial in-
process of gathering, writing,
dependence. In the United States, feder-
editing, or publishing news or
al efforts to enact a journalists’ shield
information for dissemination
law have been stymied for years, in part,
to the public, whether for com-
because of fears that terrorists might
pensation or not.
use it to protect their communications
� Is it limited by media platform? The
from law enforcement scrutiny.
most effective privilege would not
War correspondents face many special
be limited to those in the print and
challenges. Maintaining source confiden-
broadcast mainstream media. It
tiality can be essential to protecting these
would include book authors, as well
journalists’ safety. But what happens when
as bloggers and others who dissemi-
the journalist is an eyewitness to atroci-
nate their work on the Internet.
ties and is summoned before a war crimes
� Which sources does it protect?
tribunal to give evidence?
A comprehensive privilege would
In 1993, Washington Post reporter
cover not only the identity of
Jonathan C. Randal interviewed Rado-
sources but also unpublished infor-
slav Brdjanin, a Serbian nationalist,
mation and documentary materi-
whom he quoted in an article on ethnic
als, such as photographs, notes,
cleansing. Years later, after Randal had
tapes, drafts, and other unpub-
retired from journalism, Brdjanin was
lished journalistic work product.
charged with genocide. Prosecutors
In the absence of an absolute privi-
wanted to introduce Randal’s article as
lege, one who seeks to compel a journal-
evidence in the trial before the U.N. In-
ist to reveal confidential sources and
ternational Criminal Tribunal for Yugo-
information should be required to show
slavia (ICTY). When the defense insisted
good cause. Nations have devised differ-
on the right to cross-examine Randal,
ent standards, but the more common
the former reporter was subpoenaed to
factors include:
appear before the court. Randal resisted,
arguing that being compelled to testify
� The information is unobtainable
would compromise his ability to gather
from any other nonjournalistic
news in war zones and could endanger
source after all reasonable alter-
his personal safety were sources to per-
natives have been exhausted.
ceive him as a potential witness.
� The information sought is mate-
In December 2002, the Appeals
rial, or absolutely essential, to the
Chamber recognized a qualified testi-
disposition of the underlying case
monial privilege for war correspondents,
(such as exonerating evidence for
even where their sources are not confi-
an accused criminal).
dential and their information has al-
� A judge must find that the public
ready been published. It defined war
interest in disclosure outweighs
correspondents as “individuals, who for
the public interest in the free flow
any period of time, report (or investigate
of information.
for the purposes of reporting) from a
The final element is the most prob-
conflict zone on issues relating to the
lematic. When does another interest out-
conflict.” The court acknowledged that
weigh the fundamental right to press
to do their jobs, “War correspondents
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[ M e d i a L a w | H a n d b o o k ]
must be perceived as independent ob-
by the Fourth Amendment, as any other
servers rather than as potential witness-
entity would be, from “unreasonable
es for the Prosecution. Otherwise, they
searches and seizures.”
may face more frequent and grievous
In dissent, Justice Potter Stewart
threats to their safety and the safety of
wrote:
their sources.” The tribunal ruled, ”The
It seems to me self-evident that
amount of protection [recognized] is di-
police searches of newspaper offices
rectly proportional to the harm that it
burden the freedom of the press.
may cause to the newsgathering func-
The most immediate and obvious…
tion.” To compel testimony, it held, the
injury…is physical disruption of the
subpoenaing party must show that the
newspaper. …But there is another
evidence is of “direct and important val-
and more serious burden…imposed
ue in determining a core issue in the
by an unannounced police search of
case” and that the evidence cannot rea-
a newspaper office: the possibility of
sonably be obtained elsewhere.
disclosure of information received
Randal’s case was a controversial one.
from confidential sources, or of the
Although more than 30 international
identity of the sources themselves.
news organizations supported his ap-
peal, Ed Vulliamy, a British journalist
In response to the majority ruling, the
who also covered the war in Bosnia and
U.S. Congress enacted the Privacy Pro-
voluntarily testified at the trial of Milan
tection Act of 1980. This statute forbids
Kovacevic, argued that Randal’s posi-
both federal and local law enforcement
tion was wrong. “At the root of the Wash-
authorities from seizing documentary, or
ington Post’s objection is the supposed
work product, materials in the possession
bedrock of the journalists’ profession:
of persons intending to disseminate them
neutrality,” he wrote. “I believe that there
to the public (i.e., journalists). Exceptions
are times in history…that neutrality is
include materials necessary to prevent
not neutral but complicit in the crime. …
death or serious injury, or child pornogra-
The court needs reporters to stand by
phy. Similarly, in 1995, the New Zealand
their stories on oath.”
Court of Appeals ruled searches of jour-
A related issue involves the power of
nalists’ workplaces appropriate only in
governmental authorities to search me-
exceptional cases when essential to pro-
dia offices. Zurcher v. Stanford Daily
moting the interests of justice and, even
(1978) was a U.S. Supreme Court case
then, not to be executed in a way that
challenging the power of police officers
would impair the dissemination of news.
to enter the office of a university student
But in other parts of the world, news-
newspaper and to seize unpublished pho-
room searches occur frequently. For exam-
tographs of a violent confrontation be-
ple, in 2004, the Independent Commission
tween police officers and demonstrators
Against Corruption in Hong Kong obtained
who had seized and occupied the Stan-
14 warrants to search newspaper offices
ford University hospital. Although the
and journalists’ homes. The commission
student newspaper argued that the First
sought the identity of an individual who
Amendment protected it from law en-
had provided a witness’s name to the news
forcement searches of its premises, the
organization. The Court of Appeal ruled
majority opinion by Justice Byron White
these searches justified.
ruled that news organizations enjoy no
Although the European Court of Hu-
special status under the First Amend-
man Rights holds that newsroom search-
ment, although they would be protected
es violate Article 10 of the European
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[ a F r a m e w o r k f o r a F r e e P r e s s ]
Convention on Human Rights, many
ment-collected and -maintained
European countries still permit them.
information, information paid for
Austria and Germany are two excep-
by the public’s tax dollars.
tions, with the German Constitutional
� When journalists can obtain public
Court ruling in February 2007 that
records, they need not rely on the
these searches violate constitutional
whims of a government source to re-
freedom of speech protections.
port on government actions and ac-
Antiterrorism laws adopted in much
tivities, and they can better disclose
of the world since 2001 have expanded
how tax dollars are spent and how
law enforcement and intelligence au-
policies are made and implemented.
thority to intercept communications
through wiretapping and similar means.
In short, journalists’ access to govern-
These laws typically afford journalists
ment information is an essential tool for
no less, but also no more, protection than
building and maintaining democracy.
other citizens. However, a few countries
Many international agreements em-
do grant the news media special protec-
brace and promote transparency:
tion. In Georgia, intercepting journal-
� Article 19 of both the Universal
ists’ communications for the purpose of
Declaration of Human Rights and
uncovering professional secrets is a
the International Covenant on
crime. And in Belgium, the Law on Pro-
Civil and Political Rights guaran-
tection of Journalists’ Sources imposes
tees the right to seek, receive, and
the same restrictions on surveillance as
impart information. This phrase
on an attempt to compel disclosure of a
has been construed to include a
confidential source.
right of freedom of information.
In short, there is broad recognition
� Article 9 of the African Union (AU)
that protecting journalists’ confidenti-
Convention on Preventing and Com-
ality is essential to maintaining their
bating Corruption, a treaty signed
independence.
by 40 of the 53 members of the AU,
The Right of Access to
says, “Each State Party shall adopt
Government Information
such legislation and other measures
and Proceedings
to give effect to the right of access
Why is the right of access to govern-
to any information that is required
ment proceedings and information
to assist in the fight against corrup-
important?
tion and related offenses.”
� The Organization of American
� Access helps keep government
States, the Arab Charter on
accountable to its citizens. As a
U.S. Supreme Court justice once
Human Rights, and many other
wrote, freedom of information laws
treaties, conventions, agreements,
allow citizens to find out “what the
and declarations recognize free-
government is up to” in the pres-
dom of information as a funda-
ent, and also what it did in the
mental human right.
past. By helping to check improper
But the reality often falls short of the
conduct, access serves as a valu-
rhetoric. Individual nations decide wheth-
able anticorruption tool and helps
er and how they will implement these
build public trust.
lofty principles. The journalist who sets
� Access allows the public to tap
out to exercise her right to know may find
into the vast quantities of govern-
the experience a challenging one.
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[ M e d i a L a w | H a n d b o o k ]
Freedom of information is a constitu-
that handle intelligence and security, as
tional right in about 80 countries. Swe-
in the United Kingdom. But the U.S.
den’s 1766 press law, often considered
FOIA covers neither the legislative nor
the first freedom of information act, is
judicial branches of government. Access
part of its constitution, and some older
to state and local executive branch agen-
constitutions have been amended to in-
cy records are covered by state open-
clude a right to know. Many developing
government laws.
democracies in Central and Eastern Eu-
In the United States, as in most coun-
rope and Latin America include access
tries, anyone can make a FOIA request.
provisions in their new constitutions.
Neither U.S. citizenship nor residency is
Even when the constitution contains no
required, and access is open to all, not
explicit language, the highest courts in
just journalists. Requesters are encour-
some countries, including Korea, Japan,
aged to utilize government reading
and Israel, have found a right of access
rooms, either brick-and-mortar or virtu-
to information implicit in the right of
al, to gain free access to records already
freedom of the press or expression.
released under so-called E-FOIA initia-
More than 70 additional countries have
tives or disclosed in response to an earlier
enacted freedom of information statutes.
FOIA request. They are also invited to
These are well established in Europe and
contact the agency FOIA officer to dis-
the Americas, less so in Asia, the Middle
cuss informally what types of records
East, and Africa. But the trend is definite-
may be available before filing a formal ac-
ly toward greater transparency in govern-
cess request. In the United States, no
ment around the world.
special form is necessary to file a FOIA
request—just a simple letter, addressed
Freedom of Information Laws
to the pertinent FOIA officer, reasonably
Most freedom of information laws describing the records sought. Most agen-share common principles and char-
cies are prepared to accept requests in
acteristics. Many recent examples were
writing or electronically.
influenced by the U.S. federal Freedom
Despite the presumption of openness,
of Information Act (FOIA), so we will
however, nearly every freedom of informa-
use that statute as an example.
tion law includes exemptions—categories
President Lyndon B. Johnson signed
of records an agency can withhold. The
FOIA into law on July 4, 1966. Despite
U.S. FOIA has nine exemptions, which,
its name, the statute does not actually
under the terms of the statute and based
create a right of access to information.
on guidance from the Department of Jus-
Rather, it establishes a presumptive right
tice, should be narrowly construed:
of access to existing records, in paper or
� national security;
digital form, held by executive branch