The right of non-disclosure

Kevin Aquilina has written an excellent article on the protection of journalists’ sources under Maltese law (October 5).

The protection of journalistic sources is fundamental for press freedom to flourish in any genuine democracy. Without it, journalists would be seriously hampered in the exercise of their vital role as public watchdog. Also, the public’s right of information by the media would be hopelessly compromised because future sources would be unwilling to provide investigative journalists with necessary information on matters of public interest.

As Prof. Aquilina very rightly points out, there is no definition of “journalist” and “journalistic sources” in the Press Act. More worryingly, because Maltese law only protects “authors”, “editors” and “publishers”, journalists working in a newsroom and other employees at a particular news medium who may be privy to the source of journalistic information are not afforded the same protection as journalists are and may be requested to reveal journalistic sources.

The journalistic freedom of confidentiality of sources was introduced into our statute book in 1996, when the Press Act was amended. At the same time, the European Court of Human Rights recognised, in its landmark judgement in Goodwin v. the United Kingdom, that article 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms, safeguarding the right of freedom of expression, includes within it the right of journalists not to disclose their source of information.

While the 1996 amendment to the Press Act was clearly a step forward in the right direction, yet, account has evidently not been taken of Recommendation No. R (2000) 7 of the Council of Europe Committee of Ministers to member states on the right of journalists not to disclose their sources of information, adopted on March 8, 2000.

The recommendation specifically provides inter alia that other persons who, by their professional relations with journalists, acquire knowledge of information identifying a source through the collection, editorial processing or dissemination of this information, should equally be protected under the principles established in the recommendation.

This would include secretarial staff, journalistic colleagues, printing staff, the editor (already covered under our law as it stands and as also held to be included within the protection of article 10 of the Convention by the European Court in its 1997 judgement in De Haes and Gijsels v. Belgium) or the employer of a journalist.

“Source” is defined to mean any person who provides information to a journalist. “Information identifying a source” means, as far as this is likely to lead to the identification of a source, the name and personal data as well as voice and image of a source, the factual circumstances of acquiring information from a source by a journalist, the unpublished content of the information provided by a source to a journalist and personal data of journalists and their employers related to their professional work.

While it must be conceded that the regulation is not a legally binding and enforceable instrument, yet, it is of compelling moral weight and the Maltese Parliament would do well to take note thereof and to further amend the Press Act accordingly.

I would reserve my closing comment to the unhappy fact that Maltese law does not define a “journalist” and that, in extending protection instead to the “author”, our law perhaps goes a touch too far. This is because, even in the absence of any statutory definitions of those terms, it is immediately clear from its ordinary meaning that “author” has a much wider and extensive connotation than “journalist”.

The recommendation in fact defines “journalist” as meaning any natural or legal person who is regularly or professionally engaged in the collection and dissemination of information to the public via any means of mass communication. The words “regularly or professionally engaged” denote the requirement of a certain occupational tendency. A journalist would typically work regularly and receive some form of remuneration for his/her work. Of course, this does not exclude journalists who work freelance or part-time.

However, individuals who write letters to the editor in the print media or who appear as special guests on broadcast media programmes, or who participate in discussion fora in online-based media would be excluded and arguably rightly so. Indeed, the entitlement of such persons to the journalistic freedom of confidentiality of sources must definitely be questionable as going beyond the scope and justification of such right in a democratic society, upsetting the balance and, possibly, bordering on abuse.

Dr Dingli, a lawyer by profession, is chairman of the Press Ethics Commission.