The protection of journalists’ sources
- Parliamentary Assembly
- Assembly debate on
25 January 2011 (4th Sitting) (see Doc. 12443, report of the Committee
on Culture, Science and Education, rapporteur: Mr Johansson). Text
adopted by the Assembly on 25 January 2011 (4th Sitting).
1 The Parliamentary Assembly recalls
that the free exercise of journalism is enshrined in the right to freedom
of expression and information, which is guaranteed by Article 10
of the European Convention on Human Rights (“the Convention”, ETS
No. 5). This right constitutes the foundation of a democratic society
and an indispensable requirement for its progress and the development
of every individual. Free, independent and pluralist media are a
necessary condition of any true democratic society. Democracy and
good governance require accountability and transparency and, in
this respect, media play an essential role in the public’s scrutiny of
public and private sectors in society.
2 Recalling Committee of Ministers Recommendation No. R (2000)
7 on the right of journalists not to disclose their sources of information,
the Assembly reaffirms that the protection of journalists’ sources
of information is a basic condition for both the full exercise of
journalistic work and the right of the public to be informed on
matters of public concern, as expressed by the European Court of
Human Rights in its case law under Article 10 of the Convention.
3 The Assembly notes with concern the large number of cases
in which public authorities in Europe have forced, or attempted
to force, journalists to disclose their sources, despite the clear
standards set by the European Court of Human Rights and the Committee
of Ministers. These violations are more frequent in member states
without clear legislation. In cases of investigative journalism,
the protection of sources is of even greater importance, as stated
in the Committee of Ministers’ Declaration of 26 September 2007
on the protection and promotion of investigative journalism.
4 Referring to the new Press and Media Law of Hungary (Law CIV
of 2010 on the freedom of the press and the fundamental rules on
media content), the Assembly expresses its concern that limits to
the exercise of media freedom fixed by Article 4.3 and the exceptions
to the right of journalists not to disclose their sources stipulated
in Article 6 of this law seem to be overly broad and thus may have
a severe chilling effect on media freedom. This law sets forth neither
the procedural conditions concerning disclosures nor guarantees
for journalists requested to disclose their sources. The Assembly
calls on the Government and Parliament of Hungary to amend this
law, ensuring that its implementation cannot hinder the right recognised
by Article 10 of the Convention.
5 Public authorities must not demand the disclosure of information
identifying a source unless the requirements of Article 10, paragraph
2, of the Convention are met and unless it can be convincingly established
that reasonable alternative measures to disclosure do not exist
or have been exhausted, the legitimate interest in the disclosure
clearly outweighs the public interest in the non-disclosure, and
an overriding requirement of the need for disclosure is proved.
6 The disclosure of information identifying a source should
therefore be limited to exceptional circumstances where vital public
or individual interests are at stake and can be convincingly established.
The competent authorities, requesting exceptionally the disclosure
of a source, must specify the reasons why such vital interest outweighs
the interest in the non-disclosure and whether alternative measures
have been exhausted, such as other evidence. If sources are protected
against any disclosure under national law, their disclosure must
not be requested.
7 Recalling Recommendation Rec(2003)13 of the Committee of Ministers
on the provision of information through the media in relation to
criminal proceedings, the Assembly reaffirms that the public must
be able to receive information through the media about the activities
of police services and judicial authorities, including court proceedings
of public interest, as far as this does not prejudice the presumption
of innocence of the suspect or accused under Article 6 of the Convention,
the right to privacy under Article 8 of the Convention or the secrecy
of investigations and police inquiries.
8 The right of journalists not to disclose their sources applies
also to sources from within the police or judicial authorities.
Where such provision of information to journalists was illegal,
police and judicial authorities must pursue internal investigations
instead of asking journalists to disclose their sources.
9 In so far as Article 10 of the Convention protects the right
of the public to be informed on matters of public concern, anyone
who has knowledge or information about such matters should be able
to either post it confidentially on third-party media, including
Internet networks, or submit it confidentially to journalists.
10 With regard to the right of every person to disclose confidentially
to the media, or by other means, information about unlawful acts
and other wrongdoings of public concern, the Assembly recalls its
Resolution 1729 (2010) and Recommendation 1916 (2010) on the protection
of “whistle-blowers” and reaffirms that member states should review
legislation in this respect to ensure consistency of domestic rules
with the European standards enshrined in these texts.
11 In the same manner as the media landscape has changed through
technological convergence, the professional profile of journalists
has changed over the last decade. Modern media rely increasingly
on mobile and Internet-based communication services. They use information
and images originating from non-journalists to a larger extent.
Non-journalists also publish their own or third-party information
and images on their own or third-party Internet media, accessible
to a wide and often undefined audience. Under these circumstances,
it is necessary to clarify the application of the right of journalists
not to disclose their sources of information.
12 The Assembly reaffirms that the confidentiality of journalists’
sources must not be compromised by the increasing technological
possibilities for public authorities to control the use by journalists
of mobile telecommunication and Internet media. The interception
of correspondence, surveillance of journalists or search and seizure
of information must not circumvent the protection of journalists’
sources. Internet service providers and telecommunication companies
should not be obliged to disclose information which may lead to the
identification of journalists’ sources in violation of Article 10
of the Convention.
13 Referring to the European Union’s Directive 2006/24/EC of
15 March 2006 on the retention of data generated or processed in
connection with the provision of publicly available electronic communications services
or of public communications networks, the Assembly insists on the
need to ensure that legal provisions enacted by member states when
transposing this directive are consistent with the right of journalists not
to disclose their sources under Article 10 of the Convention and
with the right to privacy under Article 8 of the Convention. The
Assembly also stresses the importance of ensuring coherence of domestic
legislation with Articles 16 and 17 of the Convention on Cybercrime
(“the Budapest Convention”, ETS No. 185).
14 The Assembly welcomes the fact that journalists have expressed
in professional codes of conduct their obligation not to disclose
their sources of information when they receive information confidentially.
This professional ethical standard ensures that sources may rely
on confidentiality and decide to provide journalists with information
which may be of public concern. The Assembly invites journalists
and their organisations to ensure, through self-regulation, that
sources are not disclosed.
15 The right of journalists not to disclose their sources of
information is a professional privilege, intended to encourage sources
to provide journalists with important information which they would
not give without a commitment to confidentiality. The same relationship
of trust does not exist with regard to non-journalists, such as
individuals with their own website or web blog. Therefore, non-journalists
cannot benefit from the right of journalists not to reveal their
16 The Assembly welcomes the work on media freedom of the Council
of Europe Commissioner for Human Rights and asks the Commissioner
to pay particular attention, when visiting member states and meeting
media ombudspersons, to the protection of the confidentiality of
The Assembly recommends that the Committee of Ministers:
17.1 call on those member states
which do not have legislation specifying the right of journalists
not to disclose their sources of information, to pass such legislation
in accordance with the case law of the European Court of Human Rights
and Committee of Ministers Recommendation No. R (2000) 7;
17.2 assist member states in analysing and improving their
legislation on the protection of the confidentiality of journalists’
sources, in particular by supporting the review of their national
laws on surveillance, anti-terrorism, data retention and access
to telecommunications records;
17.3 ask its competent steering committee to draw up, in co-operation
with journalists’ and media freedom organisations, guidelines for
prosecutors and the police, as well as training material for judges, on
the right of journalists not to disclose their sources of information,
in accordance with Committee of Ministers Recommendations Nos. R (2000) 7
and Rec(2003)13 and the case law of the European Court of Human
17.4 ask its competent steering committee to draw up guidelines
for public authorities and private service providers concerning
the protection of the confidentiality of journalists’ sources in
the context of the interception or disclosure of computer data and
traffic data of computer networks in accordance with Articles 16
and 17 of the Convention on Cybercrime and Articles 8 and 10 of
the European Convention on Human Rights.