Journalistic privilege: A democratic pillar

The job of the journalist has never been an easy one, but governments threaten to make it all but impossible if they remove reporters' privilege...

They must seek information that no-one wants to give, endanger themselves and their families by going into war zones and areas of violent conflict, publish stories that reveal injustices or corruption in the government and society, continuously be informative, and overall be fair and unbiased, all the while getting relatively modest compensation for their work.

Yet for many journalists it’s a small price to pay.

Journalists live by the belief that public enlightenment is the very foundation of justice and democracy. Their duty is to seek the truth and provide fair and balanced accounts of events and issues.

Journalists gain the trust of the people by striving to serve the public with thoroughness and honesty and a strict professional integrity.

What they provide is indeed a public service. Without them, how could we acquire honest and fair information about the world around us? How could we keep tabs on the government, and gather vital economic and social information? Democratic societies need journalism to ensure that the system is working and to keep it in check.

Recently, however, we have seen that in many countries, such as the United States and the United Kingdom, governments have been making the journalist’s job harder by attacking one of their most treasured ethical principles, the right to maintain the confidentiality of their sources.

Traditionally, sources that did not wish to reveal themselves, usually for risk of losing their jobs or endangering themselves or their family, have been able to rely on journalists’ promises of confidentiality.

This agreement has proved especially useful when exposing matters of public interest. The anonymity of sources allows for people to put trust in journalists and be open with them, thus allowing for them to reveal things that they otherwise would not be able to, for fear of prosecution or reprimand.

Over the last few years the US and UK governments, among others, have attacked this ‘journalistic privilege’ and have put pressure on journalists to reveal their sources.

However, pressure does not only come from the government, which enforces its will through contempt of court charges, threats of jail time and large fines, it also comes from society and in some instances from the journalist’s own moral affiliations.

One famous case is that of Nick Martin-Clark, an Irish freelance journalist who broke his promise of confidentiality for what he considered to be the public good.

Martin-Clark interviewed a man in a Northern Ireland jail on the understanding that he promised confidentiality. The prisoner then confessed to murdering a man in cold blood on the behalf of a loyalist paramilitary group.

The journalist then wrote an article for the British paper the Sunday Times telling the man’s story without explicitly naming the prisoner. The police however, realised the identity of the prisoner and demanded the journalist’s tape recordings and notes and asked him to testify against the man.

Martin-Clark agreed to testify on the grounds that it was morally the right thing to do and that it served the public good. The prisoner was convicted for murder and sentenced to jail for 24 years.

Martin-Clark’s actions raised a lot of questions on the role of the journalist in society. Common sense and experience suggests that if journalists begin to expose sensitive information given to them on the grounds of confidentiality, many sources will refuse to share information with them in the future.

If journalists do this they will be viewed as an extension of law enforcement and therefore it will significantly hurt their ability to provide information to the public.

The mutual respect of journalists’ privilege between government institutions and reporters allows and encourages an active exchange of information necessary to keep the public fully informed about the world in which they live.

Martin-Clark’s actions were nearsighted because they only fulfilled an immediate social good. Although it is certainly in the public’s interest to put away a cold-blooded murderer, it cannot be done at the expense of journalists’ credibility.

He might have gotten one murderer sentenced, but he endangered the possibility of journalists putting away hundreds more in the future.

In the long run both journalism and society could suffer from his actions. He angered the NUJ by breaking its confidentiality rule, and was moved under the witness protection scheme. He claims to have received death threats.

The fault is not his alone however, police and attorneys should not always rely on the information journalists gather for their own investigations. The North Irish murderer was already the main suspect, police should have used all the investigative power (such as detailed forensic evidence) at their disposal to put him away.

The cost to society is too great if journalist privilege is compromised.

Governments should defend journalists' right to maintain the confidentiality of their sources. The topic has made international headlines over the last few years, most recently with the case of New York Times reporter Judith Miller, who went to jail for refusing to reveal her sources.

In an interview, a spokeswoman for the international journalists’ organisation, Reporters Without Borders, called source confidentiality: “an inviolable principle” of journalism.

With regard to the Miller case she asked: "Are we about to reach a point where, in a country founded on the First Amendment, journalists will be imprisoned for having defended one of the basic principles of freedom of the press?"

However, US legislation has left some room for reporter privilege.

According to the Society of Professional Journalists, most states have established ‘shield laws’ that protect journalist privilege. The courts have recognised that in some cases there are societal interests that can trump the demand for all evidence.

Although the legal protection for journalists is small and conditional, it still exists, with the 1st Amendment of the Constitution, which established freedom of speech, as its ground work.

These shield laws are highly controversial and debated. Many critics argue that the courts have the right to ‘everyman’s evidence’, and that there is no explicit constitutional indication that journalists shouldn’t share their information.

In some respects the negative light journalist privilege is seen in is due to a lack of information about what it entails and its reasons, as well as a general image problem. Some view the laws as putting journalists ‘above the law’, although far greater privileges already traditionally exist for priests, lawyers and doctors.

John Maguire of the US-based Student Press Law Centre stressed the importance of journalist privilege laws and the right to maintain source confidentiality: “Journalists need to emphasise to both the courts and the public that they are not above the law, but that instead they must be able to remain independent, so that they can maintain their traditional role as neutral watchdogs and objective observers.

When reporters are called into court to testify for or against a party, their credibility is harmed. Potential sources come to see them as agents of the state, or supporters of criminal defendants, or as advocates for one side or the other in civil disputes.”

Governments and society at large must acknowledge the true value of journalist’s reporting, and respect the privileges that allow them to do so, because in the end, their work forms one of the essential cornerstones of any democratic society.