The protection of sources

One may take it for granted that in Malta journalists enjoy the protection of the law in not disclosing the source of their information.

Indeed, under Maltese law there is no definition of journalist, journalistic sources, media and each and every one of the legitimate aims for allowing the disclosure of journalistic sources.

The privilege to protect journalistic sources is not always granted.

This is because there is no absolute privilege. Under the Press Act, the privilege is qualified; under other laws (say, the Official Secrets Act, the Security Service Act, the Prevention of Money Laundering Act, the Police Act, etc.) no such privilege is afforded.

The legitimate aims in terms of which a journalist may be ordered to disclose his source under the Press Act are more extensive than those found in UK law upon which Maltese law is modelled.

There is no uniformity in treatment of journalistic sources in Maltese law, where a qualified privilege is admitted under the Press Act, and no privilege at all is admitted under the other laws.

In our law, there are situations where the disclosure of a journalist’s source is not ordered by an independent and impartial court but by a government authority such as a minister or the police.

It is possible to circumvent the protection afforded by article 10 of the European Convention on Human Rights on freedom of expression and of the press to protect journalistic sources. This can be done by allowing police or the security service to arrive at the journalistic source through other means other than disclosure by the journalist, such as through telephone and e-mail interception and other covert means of surveillance.

Apart from journalists, other workers at a particular medium are privy to the source of journalistic information.

However, such workers are not afforded the same protection as journalists and may be requested to reveal journalistic sources without any legal protection being afforded to them.

It is evident from the case law of the European Court of Human Rights that, although it does not accord an absolute privilege to journalists on source disclosure, it recognises a qualified privilege.

Such privilege resonates vibrantly when compared to those special laws in Malta where it is totally denied or, worse still, where it is made a criminal offence not to reveal journalistic sources.

The following recommendations for legislative reform are being proposed to ensure clarity and certainty in the interpretation of the law regulating the protection of journalistic sources.

The Press Act should define the words ‘journalist’, ‘journalistic sources’, ‘media’ and the legitimate aims for allowing the disclosure of journalistic sources.

The definition of ‘journalist’ should include other workers who are privy to the identity of journalistic sources.

The definition of the legitimate aims where a journalist may be required to disclose his source should be narrowly construed once they are in breach of freedom of expression.

Orders requiring the disclosure of journalistic sources should be delivered only by the judiciary and after having heard the journalist.

Should the court request the disclosure, such revelation should take place behind closed doors. Such an order should not be a prerogative power of the Executive, be it a minister or any public officer.

The privilege should also extend to the other laws referred to above and a member of the judiciary should order disclosure.

Before ordering disclosure, a judge should be given reasonable grounds to believe that an offence has been committed under one or more of the said laws and the following conditions are fulfilled:

(a) The judge is informed that reasonable alternative measures to the disclosure are inexistent or have been exhausted without success.

(b) The information sought is likely to be of substantial value to the investigation and is likely to constitute relevant evidence in a criminal prosecution.

(c) The legitimate interest in the disclosure clearly outweighs the public interest in the non-disclosure. In particular, the necessity of the disclosure is identified as responding to a pressing social need.

Malta should legislate the soft law instruments of the Council of Europe – especially the appendix to recommendation No. R (2000) 7 of March 8, 2000 – in its domestic legislation to ensure that the unhindered exercise of journalism enshrined in the right to freedom of expression is afforded by all institutions.

This would fill in the gaps in Maltese law concerning the application of the right of journalists not to disclose information identifying a source.

The principles of subsidiarity and proportionality should be applied when considering a request for source disclosure.

Taking on board the above recommendations would go a long way to align Maltese law and practice with the European Convention on Human Rights and the European Court of Human Rights’ case law.

It will also greatly empower the fourth estate to act as a guardian of democracy by respecting the full freedom of the press.

Kevin Aquilina is the dean of the Faculty of Laws at the University of Malta