Despite the centrality of an autonomous press, the constituent aspect of source protection privilege has been neglected by courts and legislatures in India. Thus, newsgatherers’ interaction with sources is surrounded by legal ambiguity. To guard the vehicle of a free press,the reporter’s privilege should be recognised as a part of the right to freedom of speech and expression.
Indian courts are trapped in a dichotomy in their free speech jurisprudence. While the Supreme Court and high courts have established the centrality of an autonomous press within the liberal democratic paradigm, there has been
reluctance—even an abyss-like silence—on a constituent aspect that is pivotal to the functioning of the press—source protection privilege. Also known as reporter’s privilege and source confidentiality, source protection privilege shields newsgatherers from being compelled to reveal the sources who have come forward with information on the condition
My argument in this article is twofold. First, it is time for courts in India to clarify the status of source confidentiality,
whether approached from the confidential speech rights of the source or as a component of the right to free speech enjoyed by the fourth estate. The current state of ad hocism and obscurity is the result of a dichotomous approach, wherein free speech is elevated without protecting the vehicle of the press. Moreover, a review of case law reveals repeated instances of judicial silence and evasion even when the issue of source protection has arisen in cases.
Second, the reporter’s privilege should be recognised by the courts and by Parliament as a constituent of the fundamental right to the freedom of speech and expression. Its ambit may be subject to debate, but its existence and significance in journalistic activity cannot be neglected. I have adopted a qualitative, phenomenological methodology, treating doctrine in the form of case law, legislation, reports and academic literature as my sources. I will be limiting myself to a doctrinal analysis, to map the contours of source
protection privilege in India. I will briefly also review the position in the United Kingdom (UK) and the United States (Us). My choice is due to the fact that the media in all three countries operate in liberal democracies and have witnessed cases that have shaped the discourse around reporters’ privilege.
Constitution and Plight of Professional Ethics
Article 19(1)(a) of the Constitution states that all citizens have the right to freedom of speech and expression. This fundamental right may be reasonably restricted by the grounds under Article 19(2), namely the sovereignty and integrity of India, security of the state, friendly relations with foreign states, public order, decency or morality or in relation to contempt of court, defamation, or incitement to an offence. Even though freedom of the press is not explicitly mentioned, it is implicit in the free speech guarantee by constitutional design and judicial endorsement (Brij Bhushan v The State of Delhi 1950; Sakal Papers Ltd v Union of India 1962).
Reporters’ privilege is a subject that has received little attention from the Indian state and union legislatures, courts and scholars (Noorani 1982; Bhatia 2014). The only legislative provision having some direct bearing is Section 15(2) of the Press Council of India Act, 1978. The Press Council of India (PCI) is a statutory, self-regulatory body. Section 15 of the act deals with powers of the PCI for the purpose of performing its functions or conducting an inquiry under the act. Section 15(2) holds that, “[n]othing in sub-section (1) shall be deemed to compel any newspaper, news agency, editor or journalist to disclose the source of any news or information published by that newspaper or received or reported by that news agency, editor or journalists.” While source protection privilege is recognised, it is only in the form of a proviso to the preceding provision, which highlights the powers of the PCI, such as summoning attendance, discovery of documents, receiving evidence, and requisitioning public records. The utility of the privilege recognised above is suspect, as scrutiny of the PCI Act, along with statistics of how the body has operated, indicates a toothless institution that has failed in delivering its mandate (Akoijam 2012). It has limited powers of enforcing the guidelines it issues and cannot penalise newspapers, news agencies, editors, and journalists for violations of the same. In fact, the causes of its failure reflect parallels with the failure of the Press Complaints Commission in the UK. The powers conferred upon the PCI by the act are woefully inadequate to conduct an effective investigation or grant sufficient remedies, and it has acted more in the nature of a “complaints handling body” than a “regulatory body.”
Thus, the PCI does not enjoy sway in the journalistic community. It creates a peculiar situation whereby not only are print media journalists faced with a moribund sectoral regulator, but also the sole source confidentiality privilege backed by the statute is virtually futile.
The norms of journalistic conduct issued by the PCI in 2010 reiterate a similar sentiment. They state the following (Press Council of India 2010): 27. Confidence to be respected
If information is received from a confidential source, the confidence should be respected. The journalist cannot be compelled by the Press Council to disclose such source; but it shall not be regarded as a breach of journalistic ethics if the source is voluntarily disclosed in proceedings before the Council by the journalist who considers it necessary to repel effectively a charge against him/her. This rule requiring a newspaper not to publish matters disclosed to it in confidence, is not applicable where:
(a) consent of the source is subsequently obtained; or
(b) the editor clarifies by way of an appropriate footnote that since the
publication of certain matters were in the public interest, the information in question was being published although it had been made “off the record.”
Keeping aside the lack of enforceability of the above-mentioned norms of conduct, the platitudinous and poorly drafted norms are doing a disservice to the journalistic community by not addressing important questions. For instance, what is a journalist to do when the norm to respect the confidence of sources comes into conflict with a court requiring disclosure of evidence? In what manner should they deal with such judicial compulsion and on what basis should an exception be sought? Can they claim source protection under the constitutional guarantee to free speech or would an invocation of professional ethics suffice? Do courts have an obligation to respect professional media ethics? What happens when those ethics clash with the law, say the law of defamation or the Official Secrets Act, 1923? How far can national security and public interests override source confidentiality? The PCI has made no effort to address these concerns.
Codes of Conduct
Most journalistic codes of conduct for Indian newspapers are internal documents circulated for the staff, and not available in the public domain. However, the codes of conduct for the Business Standard and Mint newspapers, both of which are English-language dailies enjoying a wide circulation, can be accessed. Business Standard’s code of conduct cautions that while the “right to protect the source should be exercised to the full limit of the law anonymity should not be allowed to become an instrument for the source to dish out falsehood” (Business Standard nd). Journalists are warned to be careful about sources who seek to mislead behind the mask of anonymity. Further, the code highlights the moral obligation of journalists to protect the confidentiality of sources. However, “this obligation is not superseded by their obligation to the organisation/the Editor/or anyone officiating as their supervisor to disclose the source in support of the authenticity of a story.”
The supervisor is in turn obligated to protect confidentiality.
The Mint’s code of journalistic conduct says that “not for attribution” pieces, where the journalist agrees to not identify the source, is an acceptable method of newsgathering, though not preferred by the newspaper. To prevent being misled by a single source, it suggests that multiple sources be used to ascertain the veracity of the information. If the source does not wish to be identified in any way, the decision to use such information should be made carefully. The journalist and the editor will have to keep such information confidential (Livemint 2015).
Internationally, the Press Complaints Commission Editor’s Code of Practice (UK), the National Union of Journalists’ Code of Conduct (UK and Ireland), and the Media Entertainment and Arts Alliance’s Code of Ethics (Australia) echo the moral obligation on journalists to protect the identity of sources when confidences have been accepted.
The ordinary rule before court proceedings is that relevant evidence must be furnished for claims made (Code of Criminal Procedure of India, 1973 [CrPC], Section 39). This is considered indispensable for the administration of justice. An obligation also exists to answer all questions relevant to the enquiry (Law Commission of India 1983). If a newsgatherer refuses to comply, they may be liable for contempt of court. There is no codified source protection privilege in India that could exempt journalists from disclosing sources before a court that demands this of them. However, this position ignores the dynamics of journalistic activityIn the spectrum of activities between newsgathering and publication, the former has often been sidelined in discourse vis-à-vis the latter. Newsgathering debates have been referred to as the “Cinderella component of media law,” relegated to the backstage while publication enjoys greater prominence and visibility (Millar and Scott 2016). This has led to an imbalance in academic scholarship on this issue, and also stunted legislative and judicial endorsement.
Proponents of journalistic privilege base their arguments on the watchdog function of the press in keeping a check on governmental abuse of power, performed as an agent of the people (Langley and Levine 1988; Nestler 2005). Other justifications include the significance of enabling the unhindered flow of information, which complements the democratic decisionmaking abilities of the public and equips them to respond to debates (Harvard Law Review Association 1974).
The people also enjoy a “right to know,” and a free press is its primary vehicle. The right to receive information has been recognised by the Supreme Court in LIC v Manubhai Shah (1993). In this case, the Court interpreted the right to free speech under Article 19(1)(a) to include the right of a person to reply to a newspaper article criticising them. The LIC magazine’s refusal to publish a rejoinder to their article was held to be unreasonable and unfair. It was encouraged that people should be able to receive information on contrasting positions and decide for themselves. The “freedom to communicate one’s ideas or thoughts through a newspaper, a magazine or a movie” is part of the fundamental right to freedom of speech. Article 19 of the International Covenant on Civil and Political Rights takes a similar view, and holds that the right to freedom of expression includes the “freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice” (emphasis added).
I have favoured the use of the term “newsgatherer” over “journalist” or “reporter,” as the protection being discussed
should be available to all persons conducting journalistic activity, and not be restricted only to those individuals who are registered, licensed or accredited as journalists. The emphasis here should be on the activity rather than the individual. Similarly, it has been considered better to define the press in terms of its democratic dialogue function rather than the public watchdog function (Garry 1994). The former accounts for what the press does and not what it is (Garry 1994). Further, technological advances such as Twitter and Facebook Live, as well as the advent of camera phones and inexpensive desktop publishing have meant a rise in the number of people who can disseminate information and in effect perform journalistic functions (Kleber 2015). The Law Commission of India, in its 93rd report, recommended that the source protection privilege should extend to not only part-time journalists and casual journalists (even “the lonely pamphleteer” spoken of by the US Supreme Court), but also editorial and management personnel who are privy to the information in professional confidence and technical personnel who accompanythe newsperson. It wished to couch the privilege in wide terms so as to account for any medium of communication
to the public.
Locating Source Protection within Law of Evidence
The Law Commission of India, in its 185th report, made a laudable stride forward in voicing that “it is necessary to make a specific provision in relation to journalists’ resources” (Law Commission of India 2003). The Indian Evidence Act, 1872 privileges spousal communication during marriage (Section 122) and communications between a lawyer and a client (Sections 126 and 129) among other things. In its 185th report on a review of evidence law, the commission proposed the inclusion of source confidentiality in the form of the draft provision Section 132A to the Evidence Act. While presenting the report to the government, Justice Rao wrote that the proposed section would protect the media from the compulsion to disclose the source of their publication, except where it violates certain interests of state. The commission had studied the law in the UK, particularly the Strasbourg Court judgment in the Goodwin case and the Branzburg case in the US.
It also referred to the Law Commission’s 93rd report on the disclosure of sources of information by the mass media
and its 132nd report on the CrPC. The proposed provision read as follows:
Disclosure of source of information contained in publication
132A. (1) No Court shall require a person to disclose the source of information contained in a publication for which he is responsible, unless it is established to the satisfaction of the Court that such disclosure is necessary in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality or in relation to Contempt of Court or incitement to any offence.
Explanation. For the purposes of this sub-section,
(a) “publication” means any speech, writing, symbols or other representation disseminated through any medium of communication including through electronic media in whatever form, which is addressed to the public at large or to any section of the public.
(b) “source” means the person from whom, or the means through which, the information was obtained.
(2) The Court while requiring any person to disclose the source of information under subsection (1), shall assess the necessity for such disclosure of the source as against the right of the journalist not to disclose the source.
Even though the above-mentioned draft provision has not been codified into statutory form, it is significant for the following reasons. First, it stems from recognition of the global debates on source protection, including the position in the UK, the US, Austria, France, Norway, Germany, and Japan. Second, it is the only (proposed) statutory provision that goes to the extent of defining who a source is. Third, having answered in the affirmative as to whether a codified source protection privilege is required, the framers went on to debate the ambit of the said protection: namely, the merits of an absolute privilege versus a qualified privilege.
The earlier version of Section 132A was contained in the 93rd report of the Law Commission chaired by Justice K K Mathew, which did not contain restrictions in the interests of the state (Law Commission of India 1983). This is despite the commission’s claim to not be conferring a “privilege as such,” but rather discretion to the courts (Law Commission of India 1983). The questions of whether the privilege could be waived, when, and by whom were dismissed as “academic” and irrelevant (Law Commission of India 1983). However, the proposed provision in effect recommended an absolute privilege to newsgatherers. It was heavily criticised for failing to balance competing interests by elevating journalistic interests to a pedestal (Noorani 2006).
Sympathy of the Court: Case Law in India
The interplay between national security concerns and source protection privilege can be analysed by examining Section 14 of the Prevention of Terrorism Act, 2002 (POTA). POTA was an anti-terrorism law aimed at securing the security and sovereignty of India. It imposed an obligation to furnish information and allowed an investigating officer to demand the disclosure of information in the possession of any person or institution regarding any offence, which the investigating officer had reason to believe would be useful for preventing an act of terrorism. Failure to comply was punishable with imprisonment up to three years. Challenged on the grounds of giving arbitrary and
unchecked powers to investigating officers, and not excluding lawyers and journalists who are professionally obligated to maintain confidentiality, the case was heard by the Supreme Court in People’s Union for Civil Liberties v Union of India (2004).
The Court referred to the duty of every person to furnish information regarding offences and to assist the state in detecting crime. Rejecting the challenge, the power in the hands of investigating officers was held to be necessary in tackling terrorist activity. Further, the Court stated that a journalist or lawyer “does not have a sacrosanct right to withhold information regarding crime under the guise of professional ethics.”
While a lawyer cannot claim a confidentiality privilege over and above that under Section 126 of the Indian Evidence Act, journalists do not enjoy privilege permitting them to withhold information from courts, except for the provision under the PCI Act. This stance has been adopted by various high courts. It is telling that the Supreme Court lost a chance to render a reasoned decision in favour of or against source protection. In its silence and refusal to meaningfully discuss the issue, the constitutional free speech guarantee suffered a blow. A review of high court decisions reveals that there is an inclination towards favouring public interest concerns over
journalistic rights. The Bombay High Court, in Javed Akhtar v Lana Publishing Company (1987), witnessed a well-known film scriptwriter seeking a disclosure of sources who had made personal and allegedly defamatory comments about him in an article published in a film magazine. The defendants argued that a journalist ought not to be compelled to disclose his sources and urged the court to apply the “newspaper rule”—a newspaper cannot be asked to disclose its source at an interlocutory stage—developed in the UK. The court ruled in favour of the plaintiff and held that there was no equivalent rule in India and no precedent showing direct application of the “newspaper rule.” Disclosure was compelled because the article inquestion did not serve the public interest, but was about the private life of the plaintiff and his wife. The judgment appears to lay emphasis on the quality of the news as a relevant criterion in ascertaining the applicability of the privilege. Thus, if it were a product of investigative journalism involving a matter of public importance—say, government malpractice, or information regarding the private life of a public figure having implications for the discharge of his official functions—it could attract source confidentiality. Unless it can be established that such information requires publicity in the public interest, no privilege could be invoked.
The Delhi High Court, in Jai Prakash Agarwal v Bishambar Dutt Sharma (1986), reviewed a contempt case filed against reporters of two newspapers, which had published an article criticising the judicial verdict in an election petition. The issue was whether they ought to be asked to disclose the source of their information for the publication of the imputed items. The court answered in the affirmative and held that the press did not have an absolute source protection privilege; nor did thejournalists have absolute immunity.
Before ordering disclosure, courts should be convinced of the public interest in doing so. In Court on its Own Motion v The Pioneer (1997), a contempt of court notice was served to a journalist who had written an article criticising the judiciary.
The respondents sought to avail protection of the source, who was a government functionary they had interviewed. This was submitted to be essential for maintaining a flow of information from potential sources. The 93rd report of the Law Commission, discussed above, was relied upon. The Delhi High Court held that it was within the powers of the court to direct disclosure of sources, when considered necessary for the interests of justice. Oddly enough, disclosure was not directed in the present case because the court concluded that the report was irresponsibly written, without factual foundation and verification of facts. Thus, it was considered futile to seek the disclosure of sources. The judgment implies that more responsible journalism in this case could have led to a direction to disclose sources.
In Dr S Krishna Rao v Ushodaya Publications (2008), the Andhra Pradesh High Court made a distinction between the initial stages of a trial and its later stages. In the former, it stated, the anonymity of persons shall be respected. However, media persons and journalists could not claim protection at a later stage. This contradicts its observations in a previous paragraph, in which it acknowledged that journalists bear an obligation to protect the confidentiality of persons who share information bearing a public interest. On whether a qualified privilege was available, it was stated that it is a question of fact that can be determined by looking at the evidence adduced by both parties. It was left open to the respondents to take the plea of qualified privilege in the case at hand.
The notion that the media does not enjoy any special privilege, even beyond source protection privilege, resonates
in various decisions. In a contempt case regarding the malicious publication of court proceedings in newspapers before the Punjab High Court, it was noted that newspersons arenot a privileged class and cannot claim immunity. The liberty of the press was thus seen as subservient to the proper administration of justice (K P Narayan v Mahendrasingh Kudansingh 1957).
In In Re: Resident Editor and others of the Hindustan Times (1989), the Patna High Court delved into source protection in more depth than has the Supreme Court or any other high court. The court noted the wave of investigative journalism spreading across the world at the time, whereby media persons had become more activistic in their work. Like the courts in the Javed Akhtar and Pioneer cases, this bench considered the contents of the news to be a relevant factor. Rumours and gossip concerning the private lives of individuals were not deemed to be in public interest and hence did not constitute news. Gossip mongering, character assassination, and unverifiable information was discouraged as it could harm the constitutional institutions and impede public interest.
On source protection, the court observed the following.
First, the freedom enjoyed by the press was indistinguishable from that enjoyed by ordinary citizens. Thus, it is obligated to answer all questions before the courts in the interests of the administration of justice. Second, sources used by the media are not protected by special law. If disclosure was warranted in the interests of justice, the newsperson was under an obligation to disclose the same. Third, courts shall ordinarily not compel disclosure of sources “just for the reason of the newsman reporting a fact.” If the fact reported had no nexus to the proceedings before the court, a court shall ordinarily decline to order disclosure. Fourth, free flow of information
was a public cause and in “public interest.” When there is no public interest outweighing the interests of administration of justice, or no public interest to protect the source, the newsperson would be expected to disclose the source. Five, professional secrecy was only applicable to honest and reliable sources. Sources who provided inaccurate and distorted information were deemed not genuine and it was not unethical to disclose them.
This decision is noteworthy because it provided clarity on the current legal position and underlined the conflict between professional media ethics and the law. Furthermore, it envisaged a more detailed and coherent form of source protection privilege in discussing the ambit of protection available and which types of sources could avail of it. This could be achieved through selfregulation in the form of a code of ethics to which journalists adhere. Most importantly, the court stated, “Possibly a day will come when courts will with some definiteness say in what type
of cases source be not disclosed and in what type of cases disclosure will be necessary.” Unfortunately, the past 28 years have not seen a decision that has taken on this task, a combined result of the lack of legislative and judicial will (Mitta 2012).
The UK and the Strasbourg Court
The ambiguity surrounding source protection is not confined to India. Statements made by editors, journalists, and lawyers to the public enquiry chaired by Lord Justice Leveson, post the phone hacking scandal involving News of the World, revealedthe stark lack of certainty at the intersection of newsgathering and the law (Millar and Scott 2016). Section 10 of the Contempt of Courts Act, 1981 contains a qualified source protection privilege. The provision states that a court cannot compel a person to disclose the source of information contained in a publication, nor can a person be held liable for contempt of court for refusing to disclose the same. An exception is carved out for disclosure necessary in the interests of justice, national security, and the prevention of disorder or a crime. The shield
is available to anyone who has published, and is consistent with focusing on the activity being performed rather than the individual performing it. However, the scope of the provision has been severely diluted and it is not clear how effective it is in guaranteeing press freedom.
The facts of Goodwin v United Kingdom (1996) involve British journalist William Goodwin, engaged by the Engineer as a trainee journalist. He had received unsolicited and unattributable confidential information about the financial woes of Tetra, a company that was in the process of raising a loan due to unexpected losses in turnover. The journalist telephoned Tetra seeking its comments, and the information was traced to a confidential corporate plan accessed by a numbered few. Tetra sought an interim injunction restraining the Engineer from publishing the information. The High Court of Justice (Chancery Division) ordered disclosure of the source under Section 10 of the Contempt of Courts Act, 1981. Appeals to the Court of Appeals and the House of Lords failed as the relevant information was considered a permanent threat to the company.
The applicant alleged, before the European Court of Human Rights (ECHR), that the disclosure order was violative of Article 10 of the European Convention on Human Rights, that is, everyone has the right to freedom of expression. The ECHR held that the impugned measures were prescribed by law and law in this area cannot display absolute precision. However, the protection of journalistic sources was observed to be “one of the basic conditions for press freedom, as is reflected in the laws and the professional codes of conduct in a number of Contracting States and is affirmed in several international instruments on journalistic freedoms.” In the absence of such protection, sources would be discouraged from working with the media in matters of public interest. This would compromise the watchdog role of the press and its capacity to disseminate reliable information.
The court also pointed to the possible chilling effect of disclosure. Thus, an order for disclosure was declared not
compatible with Article 10 of the European Convention, unless justified by a supervening public interest. The purpose of the disclosure order sought had been achieved by the injunctions on publication. It was concluded that the order requiring the applicant to reveal his source and the consequent fine imposed upon him contravened his right to freedom of expression under Article 10 of the Convention.
Another case, Financial Times v United Kingdom (2010), brought a similar issue before the ECHR, on whether an order for the delivery of a leaked document contravened Article 10 of the Convention. The court reiterated that securing journalisticsources was a basic condition of press freedom in a democracy.
A disclosure order would violate Article 10 of the Convention unless justified by overriding public interest. The precedent in the Goodwin case was followed and the detrimental impact of disclosure orders on the source and the newspaper noted.
The threat of damage through the possibility of future dissemination of confidential information was deemed not sufficient to override public interest inherent in the protection of journalistic sources.
Branzburg v Hayes
In Branzburg v Hayes (1972), the US Supreme Court considered whether a journalist could be subpoenaed by a grand jury to disclose the identity of two hashish makers. The Court held that newspersons could not be considered exempt from the ordinary duty of appearing before a grand jury and that there was no privilege for confidential information in criminal cases.
Often, the context in which the issue of privilege arises—civil action, defamation action, criminal trial, or grand jury proceeding—is relevant (Frazer 1984). However, the trend in the US has been towards increased journalistic privilege, with more courts in federal jurisdictions recognising a newsperson’s privilege stemming from the Constitution (Frazer 1984).
The import of the Branzburg case is nevertheless ambiguous and scholars differ in its interpretation (Frazer 1984; Levine et al 2012; O’Neil 1975; Kloppenberg 1987; Nestler 2005).
Jones (2013) has aptly summarised, “What has emerged postBranzburg is a doctrine that is regarded as confusing, resulting in a ‘privilege’ that is ambiguous, inconsistent and the subject of significant criticism.” This is a result of the fiercely split nine-judge bench—four of whom dissented—which narrowly refused to recognise a privilege.
Justice White, speaking for the majority, highlighted the practical and conceptual difficulties in administering a constitutional source protection privilege. The possibility of a statutory privilege was left open to the US Congress. At present, source protection privilege varies across states. A statute in Maryland, which was the first state to enact shield laws, has served as a model for other states such as California (qualified), New York (absolute), and Alabama (absolute) (Levine et al 2012). However, the mere presence of such shield laws is not enough, as their utility may be limited by narrow interpretation by the courts and protection to limited types of confidential information (O’Neil 1975).
One drawback of the Branzburg case was its focus on the reporter as the centre of its constitutional enquiry. It could
have instead focused on the anonymous right to speech of the source (Jones 2013). This approach could eliminate the need to determine who was a reporter. A federal law guaranteeing source protection has been periodically proposed by the Congress, but not been enacted (Jones 2013).
Dilemmas of the Three Parties
Newsgatherers have a dual clientele—their sources and their readers (Alexander 2002). The relationship between a newsgatherer and their source is fragile, and disclosure of a source’s identity could mean that the source ceases to deliver information (Brabyn 2006). The three parties in this matrix each face risks or dilemmas of their own. The source suffers from a risk of exposure. The journalist suffers from ethical dilemmas in exposing the source and a risk of under-critical reporting. The public may lack faith in the existence and reliability of the anonymous sources (Millar and Scott 2016).
Journalists maintain that the absence of protection leads to a chilling effect, where the “mere threat of subpoenas interferes with their ability to report effectively, causing sources to refuse to grant information, delay in confirming reports, and a guardedness in both sources and journalists” (Kloppenberg 1987). Reporters use confidential sources for conveying information and opinions that would not be voiced if the identity of the source were revealed, verify information provided by non-confidential sources to convince editors of the prominence of a story, and to decide the resource allocation and commitment for stories (Blasi 1971). However, there is no conclusive study establishing a causal relationship between the presence of source protection and increased flow of information, or the absence of one and the consequent drying up of sources.
Vince Blasi’s 1971 study of American newsgatherers, published in the Michigan Law Review, is a landmark one. He estimated that approximately 30% of the information published by journalists was based on confidential sources. A greater reliance on anonymous sources was found for some kinds of stories than others, namely investigative stories involving the government, radical groups, and militant groups. Guest and Stanzler (1969) gathered that the recognised news entities such as the Wall Street Journal consistently utilise anonymous sources; annually, about 15% of its publications depended on anonymous sources. These figures are dated, and it is likely that they have increased.
Ambit of Source Protection Privilege in India
In envisaging a source protection privilege in India, one of the core issues that courts and the legislature will have to grapple with is how much and what kind of speech deserves protection. There could be an argument in favour of only a small and identifiable group of persons who are able to assert source protection privilege (Alexander 2002). An over-inclusive definition could potentially open the gates to individuals who may not be traditional journalists. This may “sap the strength out of these provisions, which help keep journalists out of court” (Alexander 2002). Thus, Alexander argues against stretching the privilege too far and recommends a strict definition, to include only those who are traditional journalists publishing with regularity. Those who gather information for entertainment, or non-dissemination purposes, such as a hobby, recreation, sport, personal use or sale of products, ought
to be excluded (Alexander 2002). An expansive definition— perhaps, like the one drafted in the 93rd Law Commission of India report—could potentially include every person who sends messages through mass media. Similarly, Abramowicz (2008) argues that protection should only be available to those journalistic uses of confidential sources that have greater public interest.
While Alexander’s concerns are well placed, I disagree with his conclusion. For a start, a narrow definition favouring traditional journalists will have the effect of aiding established commercial press entities and placing at a disadvantage lesser-known media outlets and journalists. Furthermore, Vince Blasi’s (1985) pathological perspective on free speech encourages heightened protection of speech, as first amendment doctrines should be tested on how well they serve in the worst of times. Blasi writes, [T]he overriding objective at all times should be to equip the
first amendment to do maximum service in those historical periods when intolerance of unorthodox ideas is most prevalent and when governments are most able and most likely to stifle dissent systematically. The first amendment, in other words, should be targeted for the worst of times. (Blasi 1985) Journalistic freedom is a core element of the fundamental right to freedom of speech and expression under Article 19(1)(a) of the Constitution. The object of constitutionalism, in this regard, and a theory of source protection should be geared towards limiting government abuse.
In the same vein, the case law from India is testament to the trend of leaving source protection privilege to be decided by the whims of individual judges, who have taken an ad hoc approach. The gravity of the issue, and its bearings upon constitutional theory of free speech, is rarely acknowledged. The cases are decided by benches of two to three judges, while the minimum strength of a bench examining an issue of constitutional importance should be five. Moreover, it encourages judicial censorship by inviting assessment of which kinds of speech are deserving of protection. This becomes a crude tool in the hands of judges to deny protection and anonymous speech
rights to journalism considered unworthy by them. Hingeing the professional right to secrecy on sympathetic administration of the courts appears to be a dangerous precedent to set (Sharma et al 2009).
Matters are exacerbated by the judges’ reluctance to provide a substantively reasoned decision on source protection. With the exception of In Re: Resident Editor and others of the Hindustan Times (1989)—in which the Patna High Court took the effort to analyse issues surrounding source protection privilege and voiced the need for a definitive ruling—courts have skirted the issue without explanation. The result is an atmosphere of uncertainty for newsgatherers, both traditional and nontraditional, who interact with sources wishing to remain confidential in the course of their work (Mitta 2012).
The use of the quality of journalism as a stick to narrow down source protection deserves scrutiny. The Bombay High
Court decision in the Javed Akhtar case (echoed in the Pioneer and Resident Editor cases) found support from some
journalists, as they believed it would tackle sensationalist and salacious journalism (Vanaik 1987). However, such support is a result of the conflation of two separate issues: source confidentiality and yellow journalism. The former deserves to be strengthened and not undermined by using the latter issue as a sword. The list of measures to tackle yellow journalism include better self-regulation of the media, professional ethics regimes, reducing consumer demand for prurient content, and deterrents such as penalties. It should not include reducing journalistic freedoms as a solution. The anonymous speech rights of the source would also be violated (Vanaik 1987; Sytsma et al 1973). After the Supreme Court judgment in Puttaswamy v Union of India (2017) that recognised the right to privacy as a fundamental right, the path has been paved for a strong argument in favour of the confidential speech rights of a source and the free speech rights of the newsgatherer.
While a certain degree of judicial balancing of interests cannot be avoided, the ad hocism of Indian courts cannot be condoned either. The current body of case law does not provide principled guidance upon which newsgatherers may base their actions. There is little clarity on how the law will view their obligations towards sources. This in itself may discourage sources to share information (Harvard Law Review Association 1974). Even though a narrower source privilege may discourage confidential speech, the increase in certainty it has to offer may offset the harm to the free flow of information.
India could arrive at a source protection privilege through various routes. One, the government could accept the Law
Commission’s recommendation and amend the Indian Evidence Act, 1872 to add journalistic privilege. Two, a new statute establishing and regulating journalistic privilege could be created.
Three, the Supreme Court could definitively decide its status as to whether source protection flows from Article 19(1)(a) of the Constitution, what its ambit is, and the manner in which professional ethics would interact with the law. No matter which route is taken, source protection privilege for confidential sources requires less ad hocism and greater clarity.
Vince Blasi’s prophetic words ring true time and again for source protection privilege: “A legal issue can smoulder for years until suddenly the winds of a larger controversy fan it into flame” (Blasi 1971). The stunted development of source protection privilege law in India has meant that newsgatherers’ interactions with confidential sources are coloured by ambiguity. Despite two sets of recommendations by the Law Commission of India, neither the government nor the judiciary has displayed an inclination to directly address the issue. Courts have adopted an impressionistic and ad hoc approach in deciding cases bearing upon source protection. The casualties of the quagmire are newsgatherers, sources, the public, and the spirit of a democratic nation.
Originally Published: https://www.epw.in/journal/2018/32/special-articles/newsgatherers%E2%80%99-privilege-source.html