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. |