Bloggers and their sources

Nairobi Law Monthly - - Analysis - On­line sources

Ranier Fsadni, writ­ing about Bloggers and their sources in the “Times of Malta” on Jan­uary 21, raised an im­por­tant is­sue, in the realm of me­dia law, which needs to be ad­dressed leg­isla­tively. He refers to the ques­tion of con­fi­den­tial­ity of jour­nal­is­tic sources. With­out be­ing un­nec­es­sar­ily le­gal­is­tic in this short con­tri­bu­tion, the gist of all th­ese past con­tri­bu­tions is to the tenor that the press laws need up­dat­ing, not only in re­la­tion to the pro­tec­tion of jour­nal­is­tic sources but in other aspects too, such as the need to re­peal the pro­vi­sion in the law re­lated to crim­i­nal li­bel and con­comi­tantly in­creas­ing the penalty for civil li­bel.

In­so­far as the pro­tec­tion of jour­nal­is­tic sources is con­cerned, one can­not dis­en­tan­gle the press laws from free­dom of the press as en­shrined in free­dom of ex­pres­sion both in the Con­sti­tu­tion and Ar­ti­cle 10 of the Euro­pean Con­ven­tion for the Pro­tec­tion of Hu­man Rights and Fun­da­men­tal Free­doms. To do so, of course, would be out of pace with the leg­isla­tive and ju­di­cial de­vel­op­ments achieved since In­de­pen­dence in this realm of the law.

From a study of the case law of the Euro­pean Court of Hu­man Rights, it is ev­i­dent that the court is very re­luc­tant to al­low a con­tract­ing party to per­mit the iden­tity of a source of in­for­ma­tion to be re­vealed sim­ply to bring that per­son to jus­tice for such dis­clo­sure even in cases where the source might not be act­ing in good faith and might en­ter­tain ul­te­rior mo­tives. In­deed, in none of th­ese cases has the court agreed that the con­tract­ing party sued was en­ti­tled to re­veal the source.

Case law makes it quite clear the press has to be pro­tected in its watch­dog role in so­ci­ety. The con­stant im­pres­sion one gets from read­ing this case law is that the court goes to such an ex­tent to pro­tect jour­nal­is­tic sources that it repet­i­tively keeps send­ing a re­ver­ber­at­ing mes­sage to con­tract­ing par­ties that they should not sim­ply pay lip ser­vice to free­dom of the press but should hold it in very high es­teem once it is an in­dis­pens­able in­gre­di­ent of a demo­cratic so­ci­ety founded on the re­spect for hu­man rights.

Euro­pean Court of Hu­man Rights’ pro­nounce­ments are very much rel­e­vant within the me­dia law sce­nario here. Yet, not­with­stand­ing this clear and un­equiv­o­cal line of case law, we are still shocked to read in the press that jour­nal­ists are still be­ing re­quested to re­veal their sources in court.

In the same way that the po­lice are en­ti­tled to pro­tect their in­for­mants, jour­nal­ists have a right to pro­tect their own sources too. Oth­er­wise, they would not be in a po­si­tion to act as watch­dogs of so­ci­ety, a role which has been recog­nised both by the courts. This case law makes it quite clear that the press has to be pro­tected in its watch­dog role in so­ci­ety.

The me­dia is in­deed af­forded a pub­lic watch­dog func­tion in the in­ter­ests of a flour­ish­ing demo­cratic so­ci­ety based on the rule of law.

The me­dia is there to in­ves­ti­gate the func­tion­ing of the pub­lic ad­min­is­tra­tion, to re­port upon any forms of abuse com­mit­ted by the pub­lic ad­min­is­tra­tion and to crit­i­cise – in the pub­lic in­ter­est – the mea­sures adopted by suc­ces­sive gov­ern­ments and the other or­gans of the State – the leg­is­la­ture and the ju­di­ciary.

The me­dia also helps in un­cov­er­ing wrong­do­ing by mem­bers of State in­sti­tu­tions and by pri­vate in­di­vid­u­als who come in touch with the pub­lic ad­min­is­tra­tion.

In so do­ing, the me­dia should not be un­rea­son­ably hin­dered by State au­thor­i­ties as, oth­er­wise, free­dom of the press, and democ­racy on which it is based, would end up be­ing prej­u­diced.

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