Would such an individual deserve even greater protection if he or she happened to be working within a particular organisation and wanted to disclose information relating to that organisation itself?

Where such information relates to financial matters, should the degree of protection be enhanced yet again?

None of these questions can however lay claim to simple answers. Courts in most countries have weighed immunity for individuals who 'blow the whistle' on organisations or newspapers which publish such information in the scales against other interests such as the interests of justice or national security or the prevention of disorder or crime.

Many countries have, indeed, gone on to enact provisions giving specific protection to whistleblowers, without whom, it is conceded, newspapers would find it hard if not impossible to pass on information to the public.

This privilege has again, naturally enough, been made subject to defined exceptions that appear to provide for disclosure only in the most extreme of cases. The balancing of the scales has not, however, been rendered any the easier.

This is well seen a week back in the refusal by the House of Lords, Britain's highest tribunal on appeal, to protect the confidentiality of an anonymous source who leaked information to the newspapers on a proposed take over bid of one company by another.

The July 10th ruling has led to a furore in the British press, re-agitating questions relating to the protection of journalistic sources, particularly where financial transactions are involved.

The ruling, which most certainly will be taken on appeal beyond Britain, to the Strasbourg based European Court of Human Rights, is of particular interest for Sri Lanka, poised as it is, on the brink of enacting a Freedom of Information Act with specific protection for whistleblowers.

The British law lords refused to reverse a previous judicial ruling that ordered five frontline media organisations, the Guardian, the Financial Times, the Independent and Reuters news agency to hand over documents leaked to the newspapers by an anonymous source with regard to a proposed takeover bid of South African Breweries by Interbrew, a Belgian brewer.

The publishing of the document led to the falling of Interbrew's shares by 7.5 percent while the shares of the South African Breweries jumped 8%. The court ordered the newspapers to release the document (which may reveal the name of the source) to Interbrew in order that the company could sue the leaker for breach of confidence.

The ruling has attracted widespread attention, particularly in the view of the spectacular collapse of highflying corporations such as Enron in recent times in the United States, leading to calls for stricter monitoring of financial institutions across the world. British newspapers argue however that so long as sources who reveal information about the affairs of large publicly listed companies fear the stripping of their anonymity by judicial order, the part that the press can play in exposing financial accountability will necessarily be limited. In a leader appropriately titled "Muzzled and puzzled", the Guardian last week strongly critiqued the law lords decision, pointing out that it will lead to newspaper watchdogs having no teeth and no bark.

The four media organisations adversely affected by the recent ruling are expected to appeal to the European Court. Their appeal will be spurred by the more 'source protective' approach taken by the European Court in the past in similar situations. Thus, the Court upheld in 1996, the right of a trainee journalist to refuse to disclose the name of an employee who had given him information regarding the company's financial situation. (Goodwin v United Kingdom) The House of Lords had earlier ordered disclosure so that the company could unmask the employee for disloyalty and possibly take legal action against the latter.

The reasoning of the European Court in Goodwin's case follows previous opinions by the Court that journalists should have a particular licence to disseminate information, based not only on views expressed by themselves but also by others.

Where a state takes up the position that "duties and responsibilities" restricted an individual's exercise of the right to impart information, the Court has preferred the view that any individual, an employee, a civil servant or a journalist who has access to information of great importance has a right to disseminate that information, overriding the concern of the state that the information should be kept secret.

This is particularly so where there is overwhelming public indignation regarding a particular issue as for example, wide scale governmental or financial corruption.
Thus, limitations on the confidentiality of journalistic sources have undergone the most careful scrutiny by the Court.

In Sri Lanka, the proposed Freedom of Information Act, which is one of the plethora of draft Acts that will be presented to Parliament shortly, has specific provision with regard to protection of whistleblowers in sections twenty three and twenty four.

These provisions stipulate that no one may be subject to any legal, administrative or employment related sanction, regardless of any breach of a legal or employment obligation, for releasing information on wrongdoing, or that which would disclose a serious threat to health, public safety or the environment, as long as they acted in good faith and in the reasonable belief that the information was substantially true and disclosed evidence of wrongdoing or a serious threat to health, safety or the environment.

It is further provided that for the purposes of the previous section, wrongdoing includes the commission of a criminal offence, failure to comply with a legal obligation, a miscarriage of justice, corruption or dishonesty, or serious maladministration regarding a public authority.

The Draft Act also provides that no one shall be subject to civil or criminal action, or any employment detriment, for anything done in good faith in the exercise, performance or purported performance of any power or duty in terms of this Act, as long as they acted reasonably and in good faith.

These are fairly comprehensive statutory provisions that attempt to work out a measure of protection for whistleblowers and should be complemented by parallel provisions relating to the protection of journalistic sources in contempt of court legislation.

Despite such legislation, we cannot but expect an equally tense balancing of the competing rights involved regarding the 'chilling' of information as the United Kingdom is presently experiencing.

Back to Top

Back to Columns

Copyright © 2001 Wijeya Newspapers Ltd. All rights reserved.
Webmaster