Theoretical underpinnings of the protection of journalists’ confidential sources: why an absolute privilege cannot be justified

In recent years, many states have reformed laws,or are considering the reform of laws, that govern whether journalists should be compelled to reveal the names of sources who wish to remain ‘anonymous’ (‘confidential sources’). Such reforms have often come about as a result of journalists being sanctioned for non-disclosure under existing laws, or from a general acceptance that existing laws gave inadequate protection to journalists. In such debates, the media lobby has tended to request that they are given an absolute privilege against the forced disclosure of their confidential sources, and currently absolute protection is recognised in around 20 countries. This article argues against absolute source protection laws. It does so by exploring the three main sets of arguments which are used to support protection of confidential sources: those based upon theories of promises and confidentiality; those justified on grounds of the efficiency of newsgathering or other professional related arguments; and those based upon constitutional arguments such as that the press has special privileges as a result of its watchdog role, because it is the Fourth Estate of government, or because of the importance of free speech. None of these arguments is robust enough to support absolute protection, and the position of absolute privilege advocates is further undermined by the variety of situations in which journalists seek to protect their confidential sources. Such sources have a wide range of motivations for disclosing the information they give to journalists, some of which are altruistic, such as the whistleblower wishing to reveal illegal practices. Others are clearly malevolent, hoping to besmirch the name of another, or to criminally exploit false information they reveal. Journalists protect confidential sources who are criminals, and refuse to reveal them even when it could aid a criminal defendant. It is clear that in a number of these situations there are public interests or private rights adversely affected by the disclosure of information by a confidential source, or the refusal of a journalist to reveal the name of a source, which would not be protected if journalists had an absolute right to protect their confidential sources. Whilst being opposed to absolute source protection, this writer accepts that the protection of confidential sources may have an important value; in the concluding section of the article, a number of different ways in which protection of confidential sources can be balanced against competing interests and values are explored