This Article is written by Anna Elizabeth Mithun of University of Turin, Italy, an intern under Legal Vidhiya
Abstract
Press freedom and source protection are vital to democracy, allowing journalists to expose wrongdoing and inform the public. This essay examines the legal and ethical foundations of these principles, the risks journalists face, and the impact of surveillance and censorship. Through real-world examples, it highlights the urgent need for stronger legal safeguards and digital security for both reporters and whistleblowers.
Keywords
Press Freedom, Source Protection, Journalism, Democracy, Surveillance, Whistleblowers, Freedom of Speech, Journalists, Censorship.
Introduction
Press freedom and the protection of sources are essential to the functioning of any open and democratic society. A free press acts as a check on power, exposing corruption, abuse, and systemic failures that otherwise remain hidden from public scrutiny. Central to this mission is the ability of journalists to receive and protect information from confidential sources, many of whom risk their careers, safety, or lives to bring the truth to light. The concept of source protection is not just a professional ethic but a critical safeguard that enables whistleblowers to come forward without fear of retaliation.
Despite widespread recognition of press freedom in international law and democratic constitutions, threats to these freedoms are growing, from state surveillance and legal coercion to physical violence and digital insecurity. This essay examines the legal foundations, ethical obligations, and practical challenges related to press freedom and source protection. Through international frameworks and prominent case studies, it highlights the urgent need to strengthen both legal and digital protections for journalists and their sources in a rapidly evolving media landscape. The core argument is clear: democracy cannot survive without a press that is both free and trusted.
Historical and Legal Background
The concept of press freedom has a rich global history, originating in England from protests against governmental interference and suppression. Following the invention of printing in the late 15th Century and the appearance of newspapers in the 17th Century, which demonstrated the press’s power, authorities like the Church and State often resorted to censorship and licensing. A pivotal moment was John Milton’s Areopagitica (1644), a protest against licensing, which championed the “liberty to know, to utter, and to argue freely”. This agitation ultimately led to the non-renewal of the Licensing Act of 1662 by the House of Commons in 1694, marking a triumph against the power of the licensor.[1]
In the United States, press freedom, though not initially explicit, was later enshrined in the First Amendment of the American Constitution, influenced by the Virginian Declaration of Rights. The Indian Press has a long history, starting under British rule with acts like the Indian Press Act, 1910, aimed at control and censorship. Post-independence, India’s Constitution, in Article 19(1)(a), lays down the right to freedom of speech & expression, which is now settled to include freedom of the press, though not expressly provided.
The protection of journalistic sources is considered one of the basic conditions for press freedom. A key principle in the United Kingdom, as seen in Goodwin v. United Kingdom, dictates that intrusion is only justified by an overriding public interest. The Contempt of Court Act 1981 (CCA), Section 10, generally protects a person from being required to disclose a source, with exceptions for justice, national security, or preventing disorder or crime. While the Police and Criminal Evidence Act (PACE) carves out journalistic material from general search powers, requiring a specific warrant application, cases like Miranda v. Secretary of State for the Home Department show that national security interests can outweigh journalistic rights under certain acts like the Terrorism Act 2000, although the specific stop powers were deemed to lack sufficient legal safeguards for journalistic information.[2]
The freedom of expression is usually acknowledged as a universal human right and a fundamental aspect of a democratic society, and refer to Article 10, rights to freedom of expression in the context of a UK legal case. It is also enshrined in international legal frameworks such as Article 19 of the Universal Declaration of Human Rights (UDHR), Article 10 of the European Convention on Human Rights (ECHR), and other specific international conventions like the Inter-American or African Charters concerning press freedom.
In the United States, press freedom is legally protected by the First Amendment. Landmark cases include New York Times Co. v. United States, which allowed the publication of the Pentagon Papers against government claims of national security threats, and Near v. Minnesota, which established the principle against prior restraint.
A notable challenge to press freedom in the United Kingdom, where it is defined as the right to print anything not legally prohibited, is Section 40 of the Crime and Courts Act 2013. This provision was created to penalize news outlets that resist government-mandated regulation, leading the majority of the industry to establish self-regulation via the Independent Press Standards Organisation (IPSO). Other legal restrictions include libel laws, Official Secrets and anti-terrorism legislation, and the law of contempt.
In India, press freedom falls under Article 19(1)(a) but is subject to restrictions in Article 19(2), including sovereignty and integrity of India, security of the State, public order, and contempt of court. Sedition (Section 124A of the Indian Penal Code) is a notable restriction, though comments disapproving government actions without exciting hatred are not an offense. Cases like Romesh Thapar v. State of Madras reinforced the freedom of circulation. Explicit inclusion of press freedom in Article 19(1)(a) has been recommended by the National Commission to Review the Working of the Constitution (NCRWC).[3]
Ethical Importance and Role in Investigative Journalism
The protection of journalistic sources is ethically and practically vital for the functioning of a free press and is at the heart of investigative journalism. The National Union of Journalists (NUJ) has a long history of defending this right, which is fundamental to its commitment to members. A journalist, according to the ethical guidelines of the NUJ’s code of conduct, is required to protect the identity of sources who offer information confidentially. This reflects a profound commitment to those who bravely come forward with information. Sources often provide material in confidence because they fear threats or reprisal from individuals or institutions undertaking wrongdoing, especially those in powerful positions.[4]
Source protection is essential for public interest journalism. Journalists rely on confidential material to inform stories and aid accurate reporting, which is crucial for uncovering wrongdoing such as corruption, human rights abuses, or environmental crimes. Efforts to force disclosure of source material have harmful impacts on public interest journalism. Journalistic source protection is deemed a foundational element of press freedom, as highlighted by a European Court of Human Rights ruling. If sources aren’t protected, they may be unwilling to share information, thus hindering the press’s “vital public watchdog role” and its ability to offer dependable and accurate news. Threatening the right to protect sources also puts public interest stories at risk. There are various examples of this. In 2022, Chris Mullin, backed by the NUJ, successfully contested a police order to disclose source material, on the grounds that it would breach the principle of protecting sources, a right the union considered paramount in the Birmingham pub bombings investigation.
The investigative journalists Trevor Birney and Barry McCaffrey successfully challenged the legality of search warrants used against them after receiving a leaked confidential report from an anonymous source. The judgment affirmed that no overriding public interest justified interfering with the protection of journalistic sources in their case.
The NUJ strongly opposed the prosecution and extradition of Julian Assange, arguing that charges against him for protecting a source presented a threat to freedom of expression with widespread negative impacts for journalists. In 1999, Ed Moloney refused a court order to hand over interview notes, emphasizing that protecting sources was critical for building trust, and his refusal was upheld by Belfast’s High Court. In 2020, the NUJ also defended journalists’ right to protect key workers who spoke out about PPE shortages, as their information was key to public interest journalism.[5]
There are also many other cases such as the Watergate scandal, where the anonymous source “Deep Throat” was crucial, the Panama Papers relying on a massive leak from an unknown whistleblower, and disclosures by whistleblowers like Edward Snowden, in which the ability of journalists to protect their sources was fundamental to bringing significant information to light. Many journalistic codes of ethics, such as those from the Society of Professional Journalists (SPJ) or the International Federation of Journalists (IFJ), similarly underscore the ethical imperative to protect confidential sources. Protecting journalistic sources is like safeguarding the very pipelines that deliver vital information from hidden places to the public. Without that protection, those pipelines would run dry, leaving us in the dark about matters that deeply affect society.
Current Threats and Challenges
The protection of journalistic sources is a fundamental right essential for journalists to exercise their freedom of expression and fulfill their vital function as a “public watchdog”. This right is recognized by the Human Rights Committee as a limited journalistic privilege not to disclose information sources. The confidentiality of sources is crucial because without it, sources may refrain from helping journalists inform the public. This right applies regardless of whether the sources obtained information legally or illegally.
Regarding state and corporate surveillance, the protection of sources extends beyond mere orders to reveal names; it also safeguards journalists from actions by police or other public authorities that could lead to source identification. Journalists are protected, for example, from police orders demanding source-related documents, surveillance of their phone conversations, or searches of their homes and data storage devices.
Concerning anti-terror laws used to force source disclosure and the misuse of national security rhetoric, the secrecy of journalistic sources is not absolute but can be restricted only in exceptional circumstances. Any such restriction must serve a public interest and be strictly necessary and proportional in pursuit of a legitimate aim. It is critical to note that the need to identify a person who leaked a company’s confidential corporate plan or information in a highly sensitive criminal case would not automatically be considered an overriding public interest justifying disclosure. This sets a high bar against broad claims, including those related to national security, that might seek to compel disclosure. Any interference with source secrecy must be treated with utmost caution, and adequate legal safeguards are required to prevent authorities from abusing these exceptions. Even when information is connected to a serious crime, such as child abuse, is deemed important, and is essential for uncovering the truth, a judge’s power to order measures to uncover a journalist’s sources does not extend to forcing the journalist to reveal them. Journalists maintain the right to refuse any pressure and cannot be compelled to give a statement to reveal the origin of their sources.[6]
The existence of various legal instruments, such as the Law on the Freedom of the Press, the Law on the protection of journalists’ sources, and numerous judgments by the European Court of Human Rights (e.g., Goodwin v. the United Kingdom, Nagla v. Latvia), alongside recommendations from the Council of Europe, highlights the enduring importance and the continuous need to defend these protections against potential threats.
The European Media Freedom Act (EMFA) is a crucial and unprecedented regulation that marks a significant milestone in addressing the increasing issue of state surveillance against journalists. Specifically, Article 4 of the EMFA aims to safeguard journalistic sources by prohibiting member states from requiring disclosure of sources, detaining or sanctioning media service providers, or deploying intrusive surveillance software on their devices. However, potential shortcomings include concerns that a national security derogation may have been reintroduced “through the backdoor” and that the regulation does not appear to address the outsourcing of surveillance to private entities, which could still pose a risk to journalistic sources.[7]
Protecting journalistic sources is like safeguarding the hidden roots of a vast tree: without the protection of those unseen connections, the tree (public information) cannot grow, flourish, or provide its essential benefits, leaving the landscape barren and the public uninformed.
Digital Era and Case Studies
Maintaining the confidentiality of journalistic sources is crucial for two main reasons: it enables journalists to conduct proper investigations, and it safeguards individuals and whistleblowers who offer information. Conversely, any efforts to mandate disclosure negatively impact freedom of speech and media freedom, hindering the open exchange of information.
In the digital age, source protection has acquired new significance. Surveillance technologies, often justified in terms of national security, can be used to target journalists and their confidential sources, impacting the privacy of communications. Such surveillance creates a chilling effect on media freedom, making it more difficult for journalists to communicate and share ideas, which may lead to self-censorship. A UN General Assembly resolution noted that journalists are particularly vulnerable to unlawful or arbitrary surveillance in the digital age, violating their rights to privacy and freedom of expression. Surveillance activities ultimately undermine the source protection journalists are otherwise entitled to. Therefore, the right not to disclose sources and the protection of journalistic material require that the privacy and security of the communications of anyone engaged in journalistic activity, including their communications data and metadata, must be protected. Source confidentiality must not be jeopardized by unauthorized circumventions like secret surveillance or the analysis of communications data without judicial oversight.[8]
Corporate actors, including third-party intermediaries (often associated with Big Tech), contribute to the challenges regarding data privacy. UNESCO highlights the potential detrimental impact on public interest journalism and society when source-related information is caught up in bulk data recording, tracking, storage, and collection by State and corporate actors. It is affirmed that these actors, when capturing journalistic digital data, must treat it confidentially. Furthermore, there is a call for holding surveillance companies accountable for the foreseeable misuse of their technology.[9]
In this challenging digital landscape, encryption and anonymity tools have become vital for journalists to secure their communications and protect the confidentiality of their sources. These defensive measures are crucial to safeguard movements and protect the anonymity of sources. For women journalists, who face additional online risks including harassment and threats, the ability to rely on secure, non-physical forms of communication, particularly secure digital communications, is essential to engage with their sources. Similarly, female whistleblowers rely on secure digital communication methods to minimize detection and ensure their stories reach the public.
There are various instances of legal recognition of source protection principles. For instance, the South African High Court cases have affirmed this right. Bosasa Operations (Pty) Ltd v. Basson and Another (2012) established a general proposition that journalists are not required to reveal their sources, emphasizing the media’s essential role in democracy. More recently, Mazetti Management Services v. Amabhungane Centre for Investigative Journalism (2023) reaffirmed this, stating that resistance to disclosing information to protect a source “is functional and not optional to the work-process of investigative journalism”.
Conclusion
Press freedom and source protection are under threat in many parts of the world. Without them, investigative journalism weakens, and democracy suffers. Stronger laws, better digital security, and greater public support are urgently needed to ensure journalists can work without fear and that sources can speak the truth safely.
References
- Dell, (June 17, 2021), https://www.lawjournals.org/assets/archives/2021/vol7issue3/7-3-60-340.pdf.
- How far does Article 4 of the European Media Freedom Act go in banning state surveillance of journalists? – Centre for Media Pluralism and Media Freedom, (Nov. 26, 2024), https://cmpf.eui.eu/emfa-and-state-surveillance-of-journalists/.
- Protection of journalistic sources — Human Rights Guide, Human Rights Guide https://www.guidedroitshomme.fr/en/themes/freedom-of-expression-media/media-freedom/protection-of-journalistic-sources.
- Protection of sources, https://www.nuj.org.uk/resource/protection-of-sources.html.
- Rajeev Dhavan, On the Law of the Press in India, 26 Journal of the Indian Law Institute 288-332 (1984).
- Source Protection and the Protection of Journalistic Materials, EReader https://www.mediadefence.org/ereader/publications/advanced-modules-on-digital-rights-and-freedom-of-expression-online/module-4-privacy-and-security-online/source-protection-and-the-protection-of-journalistic-materials/?tztc=1.
[1] Dell, (June 17, 2021), https://www.lawjournals.org/assets/archives/2021/vol7issue3/7-3-60-340.pdf.
[2] Ibid.
[3] Rajeev Dhavan, On the Law of the Press in India, Vol.26 No.3 Journal of the Indian Law Institute 288-332 (1984).
[4] Protection of sources, https://www.nuj.org.uk/resource/protection-of-sources.html.
[5] Ibid.
[6] Protection of journalistic sources — Human Rights Guide, Human Rights Guide https://www.guidedroitshomme.fr/en/themes/freedom-of-expression-media/media-freedom/protection-of-journalistic-sources.
[7] How far does Article 4 of the European Media Freedom Act go in banning state surveillance of journalists? – Centre for Media Pluralism and Media Freedom, (Nov. 26, 2024), https://cmpf.eui.eu/emfa-and-state-surveillance-of-journalists/.
[8] Source Protection and the Protection of Journalistic Materials, EReader https://www.mediadefence.org/ereader/publications/advanced-modules-on-digital-rights-and-freedom-of-expression-online/module-4-privacy-and-security-online/source-protection-and-the-protection-of-journalistic-materials/?tztc=1.
[9] Ibid.
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