Occupational hazards of journalists

Priyashree Sharma Phurailatpam *

We live in a society where Journalists play the important role of the watchdogs. They are the ones trying to bring forth some semblance or at least a nugget of sanity into the chaotic structure of our lives. This responsibility puts them into a myriad of situations where their lives or stability might be at stake. A lot of mismanagement, irregularity, abuse, corruption, wrong doings, and acts potentially dangerous to the public at large are more often than not brought to our attention by the media.

Now, how do journalists gather all these information? It is quite apparent on the face of it that Journalists would find it difficult to access places and situations where they can report things of massive importance to the public without their sources. In the aspect of journalism, a source is an insider informant or a confidential informer. In the United States of America, they are also referred to as a reporter's privilege.

It is quite palpable that a source's first priority is anonymity because more often than not, they are usually an employee or someone working closely with the Government or a Corporation. Everyday an enormous amount of informal flow of information takes place between insiders and journalists all over the world and journalists have a long recognised ethical code to protect their sources' identities.

Many important stories have been revealed because knowledgeable insiders, gave a confirmation or added inputs into an investigation done for the benefit of the public, therefore confirming the already resounding fact that anonymous sources continue to play an important role in providing information to journalists.

According to Privacy International (an organisation at the forefront of research and public education on issues ranging from biometrics and identity cards, police systems and national security arrangements, internet censorship, cybercrime and communication surveillance to freedom of information and media rights) "the quintessential case of protection of sources is of course the Watergate affair in the United States, where reporters revealed the abuses of powers of US President Nixon and his staff which led to his resignation and the imprisonment of many officials."

Lord Denning in British Steel Corporation v Granada Television Ltd, 1981, stated "If [newspapers] were compelled to disclose their sources, they would soon be bereft of information which they ought to have. Their sources would dry up. Wrongdoing would not be disclosed. Charlatans could not be exposed. Unfairness would go un-remedied. Misdeeds in the corridors of power, in companies or in government departments would never be known".

But the paradox here is, while one side wants the informer to be prosecuted and removed, the other side revers them as a whistleblower, a hero doing his part in the interest of the public. This dichotomy is best presented in the form of Julian Assange, or Edward Snowden, or Chealsea Manning high profiled leakers who have not sought anonymity.

Protection of sources is crucial to free expression. The media's ability to gather information andimpart it with the public is dependent on the disclosure of information by confidential sources. But when a journalist is forced to disclose their sources, the most alarming consequence is the inevitable loss of their ability to gather information, the paranoia of the sources of them being revealed, the destroying of unpublished notes which limits future journalism and history writings, and the probable danger which the journalist might face.

Privacy International reiterated this concern in their report entitled 'SILENCING SOURCES' where a part of the discussion was regarding the consequence of the lack strong source protection.

In all the common law system, the general obligation to give evidence is recognized as the historical data proves it. In England, by Act of 5 Eliz, Chap 9, Section 12, it was necessary for a person to testify in the Court of law if they were served or summoned. This obligation stems from the rigid notion which was followed in England where the citizen owed the King their unfailing duty to reveal all his knowledge, including its sources.

But even with all these generalities, the law creates an exception in matters relating to public policies or public interest, towards all those evidences which is protected by a Constitution, a Common Law, or Statutory Privilege. No doubt, all these considerations of public polices and public interest have undoubtedly led to the emergence of certain privileges or immunities which has been created and conferred by special grants to certain class or individuals in derogation of Common Rights.

According to the Law Commission Report prepared by Justice KK Mathew, on 9th of September 1983, to qualify as a privilege, four conditions must be fulfilled:

1) The communication must originate in a confidence that the facts communicated will not be disclosed;
2) This element of confidentiality must be essential to the full and satisfactory maintenance of the relationship between parties;
3) The relation must be one which, in the opinion of the community, ought to be sedulously fostered;
4) The injury that would injure to the relation by disclosure of the communications must be greater than the benefit gained by the disclosure for the correct disposal of the litigation. All these is done in a purely bona fide assumption that certain evidences should not be divulge as it would do more harm than necessary. But the western law has always recognised the principle of anonymity.

It originally emerged in the context of printers publishing anonymous articles and pamphlets. In 1734, an American publisher John Peter Zenger was tried for seditious libel for publishing anonymous columns criticizing the Governor.

In the Indian context, journalistic privilege is not something which is recognised, not even under the Indian Evidence Act albeit it is accorded protection under Article 19(1) of the Constitution of India which assures freedom of speech and expression. The only other act which comes close to protection of source is Section 15(2) of the Press Council Act, but that is only limited to proceedings of the Press Council.

As this is a fairly established position, there isn't any reported Indian decision on this subject. But an attention might be drawn to two incidents which happened in the past, where journalists refused to disclose their sources and went to jail instead, thereby helping cement the concept of lack of journalistic privilege, as long as they are willing to go to jail.

In the first case, Kaliprasanna Kavyabisliarad, the editor of Hitzibadi, refused to reveal the author of a poem published in his paper for which he was charged with libel and was sent to jail for a period of 9 months. In the other case, Pepin Chandra Pall, a journalist was sentenced to six months and imprisonment, because he refused to divulge the name of the author of an article for which Aurobindo Ghose, another journalist, was being tried for sedition. Ghose was subsequently acquitted, but Pall was sent to jail for six months for his refusal to give the name of the author. But Journalists being locked up for sedition, libel, or contempt by the court is not only isolated to Indian Courts.

In 1972, William Farr of Los Angeles Times was imprisoned for 46 days as he refused to identify his confidential sources for an article written on the Charles Manson murder trial. On a similar footing, in 2001, Vanessa Leggett, a freelance writer was imprisoned for 168 days for her refusal to divulge information obtained during her book research based on a Texas Murder case.

When opinions were invited by the Law Commission with regards to whether protection of sources, The Manipur Bar Association has expressed the view that a quali?ed privilege should be granted to Journalists who should not be required to disclose the source identity (of informant) or other confidential communications unless disclosure is necessary in the interest of "justice and public good.

The views of the Manipur Bar Association, District and Sessions Court Compound, Imphal have been thus communicated just as the legal professionals are given the statutory privilege of not disclosing what their clients have entrusted with them con?dentially, the journalists as a professional class should be given some qualified privilege by suitable enactment. The journalists should not be compelled to disclose the source of his information or the identity of their conformant as well as confidential communication, unless the disclosure is necessary in the interests of justice and public good.

According to Privacy International, nearly 100 countries have adopted specific legal protections, either in laws or constitution and 20 countries have adopted absolute protection for journalists' sources.

Nevertheless, the right of protection is more threatened in those countries without absolute protections as those said protection are regularly being undermined by regular use of search warrants on media offices and journalists' homes. In India, the authority of compelling a journalist to reveal his sources lies with the Court.

There are no specific guidelines which a Court needs to follow in order to determine the necessity of compelling a journalist to reveal his sources. This determination is done according to the facts and circumstances of each case. The court has to take into consideration the fundamental right of the journalist and respect the freedom of speech and expression bestowed upon by Article 19(1). The court also has to see whether the need of protection outweighs the need of disclosure in the interest of public at large.

* Priyashree Sharma Phurailatpam wrote this article for The Sangai Express
The Writer is a practicing Advocate in the Supreme Court of India
This article was posted on May 09, 2018.

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