Focus on Rights

Where the protection of a source does not stand
In writing sometime back on the latitude afforded to public interest publications by liberal judges in the United States, I had reason to reflect on the impact that the resounding encouragement by Brandeis J. that "Sunlight is the most powerful of all disinfectants", has had on investigative journalism in that country. ('Tiptoeing' towards free speech; An Optimistic Analysis of Reynolds vs Times Newspapers Limited and Others" Moot Point, Legal Review of the Centre for Policy Alternatives, 1999).

Express malice needed to be shown in respect of defamatory (and even incorrect) statements of fact published 'in the public interest' on the judicial reasoning that 'erroneous statement was inevitable in free debate' (New York Times vs Sullivan, 376 US, at p 271). Protection could only be displaced where a clearly malicious intention to defame was found. Stricter standards prevailed however in the United Kingdom in the operation of a rigorous 'reputation protective' principle subject only to limited exceptions as exemplified in the House of Lords decision in the Reynolds case.

The earlier liberalism that generally informed the US courts concerning the public right to know seems however to be rebounding on itself now. Nothing illustrates this change better than a recent ruling from the US courts committing a New York times reporter to jail for contempt of court in refusing to testify to a grand jury investigating the leak of a CIA operative's name. Taken into custody as a result of the order by U.S. District Judge Thomas Hogan, Judy Miller faces up to four months in prison. There is now an assured risk in carrying forward Brandeis's encouragement too bravely forward in the very country which earlier gave pre-eminence to such judicial assertions.

The plight of the sentenced journalist, Judy Miller differs from her colleague Time magazine reporter Matthew Cooper who agreed to testify after facing a similar jail sentence on the justification that his source had released him from the confidentiality bar that day. Heads of media houses in the US have responded to Miller's sentencing with disbelief, calling it "a chilling conclusion to an utterly confounding case."

The ruling illustrates the often glossed over principle that a journalist seeking to protect the confidentiality of his or her source cannot claim the same privilege that exists between a lawyer and a client. Practically, the protection in the case of a journalist's sources often turns on the context; for example, if information is needed in the course of a police inquiry, a media person is in the same position as a member of the public. Refusal to yield information could well give rise to a charge relating to obstruction of the law.

Where the matters go to court, there is again no absolute right that could be claimed by a journalist in safeguarding the confidentiality of sources. This is left to the discretion of courts. In England, Section 10 of the Contempt of Court Act, 1981 prohibits courts from ordering media personnel to disclose confidential sources except when "disclosure is necessary in the interests of justice or national security or for the prevention of disorder or crime." The greater the legitimate public interest in the information which the source has given to the journalist, the greater would be the importance of protecting the source.

In the Miller case, the issues involved complex questions of security, arising as it did from a federal investigation into who leaked the identity of undercover CIA officer Valerie Plame who was first identified as a CIA operative in the media, citing two unidentified senior Bush administration officials as sources. This identification came soon after Plane's husband, a former Ambassador publicly refuted the White House position that Saddam Hussein's government tried to obtain uranium in Africa in an effort to develop a nuclear weapons program. He later said that his wife's name was leaked to the media as retribution for his criticisms.

Responding to the article that Time magazine reporter, Matthew Cooper wrote naming Plane as the CIA operative, special prosecutor Patrick Fitzgerald took the position that even though Time magazine had submitted the notes of the reporter in the case, his testimony was necessary for the investigation.

This insistence was predicated on an argument (rather thin in its distinctions) that the conduct of the officials involved in the exposure amounted to 'an attack on the US administration' rather than an act of whistle blowing. Cooper thereafter agreed to testify following a refusal of the US Supreme Court to allow an appeal against the ruling by District Judge Hogan ordering the two reporters to testify. Miller however refused. Responding to widespread indignation following this ruling, free press advocates in America are now pushing for a federal shield law that could provide legal protection to journalists seeking to keep sources' identities confidential.

These discussions on disclosure of sources have their own relevance to Sri Lanka in view of a somewhat imprecise state of the law. In one case otherwise famous for its finding in respect of the infringement of the freedom of speech of the petitioner qua participatory listener as a result of the arbitrary stoppage of an SLBC educational radio programme, (Fernando Vs. Sri Lanka Broadcasting Corporation [1996] 1 Sri LR 157), the judges held that Article 14(1)(a) may (arguably) extend to a privilege not to be compelled to disclose sources of information if that privilege is necessary to make the right to information 'fully meaningful." However, the expansion of this principle in fundamental rights jurisprudence was unfortunately not explicitly urged in an appropriate case thereafter.

Instead, we have had developments somewhat to the negative in different legal fora. Differing judicial attitudes to disclosure of sources were evident in the backdrop of two notable criminal defamation trials against newspaper editors in the late 1990's. Indictment in both cases had followed in consequence of a gossip item in one instance and a news report in the other which (incorrectly) stated that President Kumaratunge had attended the birthday party of a parliamentarian at a hotel suite around midnight.

It was unfortunate that the first actual test of this principle came about in the context of these two cases with the possibility of "chilling" real investigative journalism that may put these questions more gravely in issue.
In the first trial, the editor of one newspaper (in the Sunday Times case) was held indirectly to account for not revealing the source of the information. The trial judge, in ruling the publication criminally defamatory in that instance, proceeded to infer that such a "suppression of evidence" meant only that the editor was himself the author of the impugned item.

In the later criminal defamation trial, (the Lakbima case), a different trial judge acquitted that editor on the basis that the required intention did not lie. In so doing, she differed from the judicial reasoning in the earlier case in regard to disclosure of sources, pointing out that to rule otherwise would lead to "very serious consequences and do much to restrain freedom of communication which is so essential to comfort and well being."
Following the repeal of provisions relating to criminal defamation in the Penal Code and the Press Council law in mid 2002, the Sunday Times and Lakbima cases were disposed of in the appellate courts without any adjudication on the outstanding legal issues.

A definable domestic legal framework resulting in a measure of certainty that the information that journalists collect in the public interest is vested with a degree of protection from exposure is yet needed. A draft Contempt of Court Act advanced before the government by sectors of civil society and the media in 2002 affords protection similar to the English legislation. Though its eventual enactment will no doubt bring about an improved status of the law, the Judy Miller decision is an undeniably frightening example of the limitations of such protection.

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