Prior to the 1996 amendments to the Press Act, journalists enjoyed no protection in relation to their sources. This meant that any court could order a journalist to disclose the source of his/her information. In 1996, the Press Act was amended and a new provision, article 46, was added, dealing with the confidentiality of sources.

...it is possible to circumvent the protection afforded by article 10 of the convention on freedom of expression to protect journalistic sources...- Kevin Aquilina

It provides that no court shall require an editor, author or publisher to disclose, nor shall such person be guilty of contempt of court for refusing to disclose the source of information contained in a newspaper or broadcast for which he is responsible unless it is established to the satisfaction of the court that such disclosure is necessary in the interests of national security, territorial integrity or public safety or for the prevention of disorder or crime or for the protection of the interests of justice. Furthermore, the court shall not order such disclosure unless it is also satisfied that, in the particular circumstances of the case, the need for investigation by the court outweighs the need of the media to protect its sources, due regard being taken of the importance of the role of the media in a democratic society.

In Maltese law, the privilege to protect the confidentiality of sources can be one of the following three types: (a) absolute privilege, (b) qualified privilege and (c) no privilege.

Absolute privilege cannot be taken away by the courts irrespective of competing rights or interests: this is the position of advocates and legal procurators. But this is not the case of the protection of journalistic sources, which more properly falls under “qualified privilege” in the case of the Press Act and “no privilege” at all in the case of certain special laws. Indeed, journalists do not enjoy an absolute privilege. In terms of article 46 of the Press Act, they enjoy a qualified privilege. In terms of other special laws they enjoy no privilege at all.

Disclosure of the informant’s identity can still be disclosed if any of the following legitimate objectives are met: national security; territorial integrity; public safety; prevention of disorder; prevention of crime; and protection of the interests of justice.

Article 46 requires the court not to order such disclosure “unless it is also satisfied that in the particular circumstances of the case the need for investigation by the court outweighs the need of the media to protect its sources, due regard being taken of the importance of the role of the media in a democratic society”.

The qualified privilege in article 46 does not apply to a journalist when s/he does not fall under one of the three categories of editor, author or publisher, nor does it apply to journalists working in a newsroom or to employees of a news medium who are privy to the identity of the source of information.

There are, however, a number of special laws that require the disclosure of journalistic sources. Such is the case with regard to the Official Secrets Act, the Security Service Act, the Prevention of Money Laundering Act, the Police Act and the Criminal Code.

On the other hand, the European Court of Human Rights has had the opportunity to rule on the matter in the following cases: Goodwin v the United Kingdom; Ernst and Others v Belgium; Roemen and Schmit v Luxembourg; Voskull v The Netherlands; Tillack v Belgium; Financial Times Limited & Others v UK and Sanoma Uitgevers BV v the Netherlands.

The main conclusions arrived at by the Strasbourg Court is that it is reluctant to allow a contracting party to permit the disclosure of the identity of a source of information even in those cases where such source might not be acting in good faith and might entertain ulterior motives. In none of these cases has the Court agreed that the contracting party sued was entitled to order the disclosure of the information’s source. No case has yet arisen before the Court which meets its very rigid standard of allowing the revelation of a source’s identity on grounds of an overriding requirement in the public interest.

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 is repetitively sending a reverberating message to contracting parties that they should not simply give 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.

There is no definition of “journalist”, “journalistic sources” and “media” in the Press Act and of each and every one of the legitimate objectives mentioned above 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 the special laws no such privilege is afforded.

The legitimate aims in terms of which a journalist may be ordered to disclose his source under Maltese law are more extensive than those found in United Kingdom law upon which article 46 of the Press Act 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 special laws.

As the law stands today, it is possible to circumvent the protection afforded by article 10 of the convention on freedom of expression to protect journalistic sources by allowing the police or the security service to arrive at the journalistic source through 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 are and may be requested to reveal journalistic sources.

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 with regard to source disclosure, it recognises a qualified privilege and such privilege resonates vibrantly when compared to those special laws in Malta where such privilege is totally denied or, worse still, where it is made a criminal offence not to reveal journalistic sources.

Prof. Aquilina is Dean of the Faculty of Laws at the University of Malta.

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