Ranier Fsadni, writing about Bloggers and their sources in the “Times of Malta” on January 21, raised an important issue, in the realm of media law, which needs to be addressed legislatively.
He refers to the question of confidentiality of journalistic sources. Without being unnecessarily legalistic in this short contribution, the gist of all these past contributions is to the tenor that the press laws need updating, not only in relation to the protection of journalistic sources but in other aspects too, such as the need to repeal the provision in the law related to criminal libel and concomitantly increasing the penalty for civil libel.
Insofar as the protection of journalistic sources is concerned, one cannot disentangle the press laws from freedom of the press as enshrined in freedom of expression both in the Constitution and Article 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. To do so, of course, would be out of pace with the legislative and judicial developments achieved since Independence in this realm of the law.
From a study of the case law of the European Court of Human Rights, it is evident that the court is very reluctant to allow a contracting party to permit the identity of a source of information to be revealed simply to bring that person to justice for such disclosure even in cases where the source might not be acting in good faith and might entertain ulterior motives. Indeed, in none of these cases has the court agreed that the contracting party sued was entitled to reveal the source.
Case law makes it quite clear the press has to be protected in its watchdog role in society. 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 repetitively keeps sending a reverberating message to contracting parties that they should not simply pay 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.
European Court of Human Rights’ pronouncements are very much relevant within the media law scenario here. Yet, notwithstanding this clear and unequivocal line of case law, we are still shocked to read in the press that journalists are still being requested to reveal their sources in court.
In the same way that the police are entitled to protect their informants, journalists have a right to protect their own sources too. Otherwise, they would not be in a position to act as watchdogs of society, a role which has been recognised both by the courts. This case law makes it quite clear that the press has to be protected in its watchdog role in society.
The media is indeed afforded a public watchdog function in the interests of a flourishing democratic society based on the rule of law.
The media is there to investigate the functioning of the public administration, to report upon any forms of abuse committed by the public administration and to criticise – in the public interest – the measures adopted by successive governments and the other organs of the State – the legislature and the judiciary.
The media also helps in uncovering wrongdoing by members of State institutions and by private individuals who come in touch with the public administration.
In so doing, the media should not be unreasonably hindered by State authorities as, otherwise, freedom of the press, and democracy on which it is based, would end up being prejudiced.