As to protection of sources of information. Can a journalist be obliged to disclose an anonymous source?

Tatiana PUIU,
media law expert

„If a court orders disclosure of an anonymous source of information, what should a journalist do? Should they disclose the source and attract scorn and condemnation from colleagues in the media? Or should they defy the court decision and protect the source by all means, respecting journalism ethics as a sacred value?” These questions were raised by the famous Lithuanian journalist Laima Lavaste in an article published in the daily newspaper Lietuvos Rytas. The Journalist supported a whole cycle of materials about the high degree of corruption among magistrates, in which she relied on the statements of a judge, who requested anonymity. Subsequently, Lavaste was sued for defamation and libel by the Vilnius District Court. The court asked her to reveal the name of the source/the judge who provided her information for her articles and the journalist refused, not wanting to violate the principles of journalistic ethics.

International standards for protection of sources of information

The right of journalists to protect their confidential sources of information is an important aspect of the right to freedom of expression. Protection of sources of documentation and information of journalists is one of the basic conditions for press freedom in a democratic society. This protection derives from the relevant national rules (art. 32 of the Constitution, art. 13 of the Law on Freedom of Expression, art. 14 of the Audiovisual Code of RM), the Journalists' Code of Ethics and affirmed by international instruments on freedoms of journalists, such as, in particular, the Resolution on Journalistic Freedoms and Human Rights adopted at the 4th European Ministerial Conference on Mass Media Policy (Prague, 7-8 December 1994) the Resolution of the European Parliament on Confidentiality for Journalists' Sources from January 18, 1994 and the Recommendation no. R(2000)7 on the Right of journalists not to disclose their sources of information, adopted by the Committee of Ministers of the Council of Europe on March 8, 2000.

Exceptions when journalists can be obliged to disclose the source

Protection of confidential sources is equally a right and an obligation of journalist. The confidentiality of sources of information used in conceiving or developing news, shows or other elements of program services is guaranteed by law.
 
The Audiovisual Code expressly provides that disclosure of an information source may be ordered by courts provided such disclosure is required for protection of national security or public order and for settlement of a case in court, when:
a) there are no alternative measures to disclosure of similar effect or they have been exhausted;
 b) the legitimate interest of disclosure is higher than the legitimate interest of non-disclosure.

On the other hand, the Law on Freedom of Expression (art. 13) stipulates that the person who made public the information obtained from confidential sources can not be obliged to disclose identity of the source in a civil or contravention case. The only exception where a person may be obliged to disclose the source of information can be a criminal case. Thus, the prosecuting authority or the court can oblige a person by law to disclose their source of information if all the following conditions are met:

1. The criminal case covers particularly serious or extremely serious crimes. Particularly serious crimes are considered crimes committed with intent for which the criminal law provides a maximum punishment of imprisonment for a term over 12 years. Exceptionally serious crimes are considered crimes committed with intent for which criminal law provides life imprisonment.
2. Disclosure of source is absolutely required for criminal prosecution;
3. All possibilities to identify the source of information by other means have been exhausted.

 
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The article was published within the Advocacy Campaigns Aimed at Improving Transparency of Media Ownership, Access to Information and promotion of EU values  and integration project, implemented by the IJC, which is, in its turn, part of the Moldova Partnerships for Sustainable Civil Society project, implemented by FHI 360.
 
This article is made possible by the generous support of the American people through the United States Agency for International Development (USAID). The content are the responsibility of author and do not necessarily reflect the views of USAID or the United States Government.

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