Investigative journalism based on confidential sources is under increasing threat in the 21st Century due to the corrosive impacts of surveillance, data retention legislation and outdated legal source protection frameworks.
That’s one of the key findings from a landmark UNESCO study ‘Protecting Journalism Sources in the Digital Age’ launched at a World Press Freedom Day conference in Jakarta.
The study was written by Australian journalist and academic Julie Posetti, who writes here for MediaShift on its key findings and recommendations.
The legal frameworks that support protection of journalistic sources, at international, regional and country levels, are under significant strain. They are increasingly at risk of erosion, restriction and compromise — a development that represents a direct challenge to the established universal human rights of freedom of expression and privacy, and one that especially may constitute a threat to the sustainability of investigative journalism.
In many of the 121 countries examined for the UNESCO study, it was found that over the past decade legal source protection frameworks are being actually or potentially:
- Overridden by national security and anti-terrorism legislation
- Undercut by surveillance – both mass and targeted
- Jeopardized by mandatory data retention policies and pressure applied to third party intermediaries – like ISPs, telcos, search engines, social media platforms – to release data which risks exposing sources
- Outdated when it comes to regulating the collection and use of digital data, such as whether information recorded without consent is admissible in a court case against either a journalist or a source; and whether digitally stored material gathered by journalistic actors is covered by existing source protection laws.
- Challenged by questions about entitlement to claim protection – as underscored by the questions: “Who is a journalist?” and “What is journalism?”
These findings are based on an examination of the legal source protection frameworks in each country, drawing on academic research, online repositories, reportage by news and human rights organizations, more than 130 survey respondents and long form interviews with nearly 50 international experts and practitioners globally.
Of the 121 UNESCO Member States studied here, developments that impact on source protection have occurred in 84 (69%) countries since 2007. These are caused, for the most part, by digital disruption, and by overreach in measures that are introduced in the name of national security or combating crime.
The study concludes that unless journalistic communications are recognized, surveillance is made subject to checks and balances (both mass and targeted); data retention laws are limited; accountability and transparency measures (applied to both States and corporations) are improved, confidence in the confidentiality of sources could be seen to be weakened. The result could be that much public interest information, such as that about corruption and abuse, will remain hidden from public view.
Many journalists are now significantly adapting their work in an effort to shield their sources from exposure, sometimes even seeking to avoid electronic devices and communications altogether. At the same time, the cost of the digital era source protection threat is very significant – in terms of digital security tools, training, reversion to more labour intensive analogue practices, and legal advice. Regardless, such tactics may be insufficient if legal protections are weak, anonymity is forbidden, encryption is disallowed, and sources themselves are unaware of the risks. The impact of these combined factors on the production and scope of investigative journalism based on confidential sources is significant.
Where source protection is compromised, the impacts can include:
- Pre-publication exposure of journalistic investigations which may trigger cover-ups, intimidation, or destruction of information,
- Revelation of sources’ identities with legal or extra-legal repercussions on them,
- Sources of information running dry,
- Self-censorship by journalists and citizens more broadly.
If confidential sources are to confidently make contact with journalists, this study proposes four conditions:
- Systems are put in place for transparency and accountability regarding data retention policies and surveillance (including both mass surveillance and targeted surveillance)
- Steps are taken by States to adopt, update and strengthen source protection laws and their implementation for the digital era,
- Training is provided to journalistic actors in regard to digital safety and security tactics,
- Efforts are made to educate the public and sources in Media and Information Literacy, including secure digital communications,
- There is recognition of the application of source protection laws to acts of journalism that encompass digital reporting processes (e.g. phone calls, emails, messaging apps, and hand written notes), along with published content – both digital and non-digital.
A major recommendation of the study is adoption of an 11-point assessment tool for measuring the effectiveness of legal source protection frameworks in the digital age. The 11 points were developed through consultation with 31 international experts in media law, freedom of expression, and investigative journalism practice.
According to this model, legal source protection frameworks should:
1. Recognize the value to the public interest of source confidentiality protection, with its legal foundation in the right to freedom of expression (including press freedom), and to privacy. These protections should also be embedded within a country’s constitution and/or national law,
2. Recognize that source protection should extend to all acts of journalism, and across all platforms, services and mediums (of data storage and publication), and that it includes digital data and meta-data,
3. Recognize that source protection does not entail registration or licensing of practitioners of journalism,
4. Recognize the potential detrimental impact on public interest journalism, and on society, of source-related information being caught up in bulk data recording, tracking, storage and collection,
5. Affirm that State and corporate actors (including third party intermediaries) who capture journalistic digital data must treat it confidentially (acknowledging also the desirability of the storage and use of such data being consistent with the general right to privacy),
6. Shield acts of journalism from targeted surveillance, data retention and handover of material connected to confidential sources,
7. Define exceptions to all the above very narrowly, so as to preserve the principle of source protection as the effective norm and standard,
8. Define exceptions as needing to conform to a provision of “necessity” and “proportionality” — in other words, when no alternative to disclosure is possible, when there is greater public interest in disclosure than in protection, and when the terms and extent of disclosure still preserve confidentiality as much as possible,
9. Define a transparent and independent judicial process with appeal potential for authorized exceptions, and ensure that law-enforcement agents and judicial actors are educated about the principles involved,
10. Criminalize arbitrary, unauthorized and willful violations of confidentiality of sources by third party actors,
11. Recognize that source protection laws can be strengthened by complementary whistleblower legislation.
The study concludes that law-makers, journalists, editors and publishers among others can play an important role in promoting public understanding of these issues, and in advocating for change.
Julie Posetti is an award-winning Australian journalist and academic. She is the Head of Digital Editorial Capability at Fairfax Media. A former editor, presenter and political reporter with the Australian Broadcasting Corporation (ABC), Posetti was based in Paris as Research Fellow and Editor with the World Editors Forum and the World Association of Newspapers and News Publishers in 2014/2015. Previously an Assistant Professor and Lecturer in Journalism at two Australian universities, she is currently a Journalism Fellow at the University of Wollongong.