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Investigative journalism: a Western perspective

With the ‘liberalisation’ of electronic media, and the consequent proliferation of TV channels, in Pakistan, investigative journalism is likely to be on the rise. Investigative journalism in the West, particularly in recent years, has been a source of significant revelations of misdeeds, including illegal activities especially in the various arms of government. For example, in Britain, the disclosures of MPs expenses scandal, which, without investigative journalism, would have remained hidden, shook the parliamentary establishment to its roots; and the revelations ruined many otherwise respected MPs reputations and cushy careers. The aftershocks of the MPs expenses exposé by the Telegraph are being felt today even after the national elections in April 2010 — three Members of the House of Commons (lower chamber of Parliament) and a member of the House of Lords (upper chamber of Parliament) are being prosecuted under criminal law. More recently, a Pakistani-British journalist exposed the Duchess of York (ex-wife of Prince Andrew) agreeing to buy favours with royalty for the price of half a million pounds. Similarly in Canada, the Federal Minister of Fisheries had to resign when the ‘tainted tuna scandal’ was uncovered by investigative journalism. Also, the story that the airplane manufacturers paid secret commissions in the sale of Airbus aircraft rocked the Canadian establishment.

The US Watergate scandal of the 1960s, thanks to two journalists’ investigations, has become so famous that many other scandals are named after it. Thus, investigative journalism has brought to the public knowledge many wrongdoings, including intriguing shenanigans, some of colossal significance, primarily by journalists receiving inside information from whistle-blowers. What normally happens is that a journalist is able to persuade someone inside an organisation, most likely an employee, either for payment or other inducement, which is then published without giving the name of the provider of the information. However, countless examples exist of morally upright insiders giving the information voluntarily on ethical  grounds without any reward, recompense or remuneration, in order to disclose culpable conduct or dubious behaviour The journalist is under a moral and professional duty to assure the insider, even to enter into a contractual stipulation, that his or her name will not be disclosed and his or her identity and legal liability will be protected.
The European Court of Human Rights has reiterated that protection of journalistic sources is one of the basic conditions for press freedom, as is recognised and reflected in various international instruments. Without such protection, sources may be deterred from assisting the press in informing the public on matters of public interest. As a result, the vital public-watchdog role of the press may be undermined and the ability of the press to provide accurate and reliable information may be adversely affected. Having regard to the importance of the protection of journalistic sources for press freedom in a democratic society and the potentially chilling effect an order of source disclosure has on the exercise of that freedom, such a measure cannot be compatible with Article 10 of the Convention unless it is justified by an overriding requirement in the public interest.

One of the major legal questions involved in this type of situation is: can journalists be forced by a court to reveal the source of their information? While confidentiality of information may be protected by the law and an employee may be under a contractual duty of secrecy, in such litigation freedom of expression and freedom of the press, constitutionally protected fundamental rights, become engaged. For example, the Canadian Constitutional protection is contained in Section 2 of the Canadian Charter of Rights and Freedoms (part of the Canadian Constitution), which lays down that: “Everyone has the following fundamental freedoms: freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication.” The US Constitution also includes this freedom in its fundamental rights. Similarly, the European Convention on Human Rights enshrines freedom of expression as a fundamental right. The Convention was made part and parcel of the UK law in 1998. This freedom gives the public a right to knowledge about matters of public interest because the public has an interest in effective law enforcement. The public also has an interest in being informed about matters of importance that may only see the light of day through the cooperation of sources who will not speak except on condition of confidentiality. Free flow of accurate and pertinent information is of fundamental importance in maintaining social justice in a democracy. The official policy of either divulging half the story or not disclosing anything sometimes can only be balanced by investigative journalism which may involve whistleblowers. The New York Times in an editorial on 12 September, 2005 stated: “Press secretaries and public relations people are paid not to give out the whole story. Instead, inside sources trust reporters to protect their identities so they can reveal more than the official line. Without that agreement and that trust between reporter and source, the real news simply dries up, and the whole truth steadily recedes behind a wall of image-mongering, denial and even outright lies.”

The right of journalist to protect the identity of their sources is considered so important that, in addition to the constitutional guarantee of freedom of expression, many jurisdictions have now built a further statutory wall to safeguard it. For example, the UK Parliament has provided a presumptive immunity to journalists’ silence in defined circumstances, subject to being overridden on enumerated grounds. Section 10 of the Contempt of Court Act 1981 stipulates: “No court may require a person to disclose, nor is any person guilty of contempt of court for refusing to disclose, the source of information contained in a publication for which he is responsible, unless it be established to the satisfaction of the court that disclosure is necessary in the interests of justice or national security or for the prevention of disorder or crime.”

It is common knowledge and now well accepted in  Western courts that the role of investigative journalism has expanded to help fill a democratic deficit in the transparency and accountability of public institutions. Furthermore, ‘investigative journalism shines the light of public scrutiny on the dark corners of many public and private institutions’. It is axiomatic that ‘unless the media can offer anonymity to whistleblowers, freedom of expression in debate on matters of public interest would be badly compromised’. Without investigative journalism many wrongdoings will remain hidden. Democratic principles would be compromised such as visibility, transparency and accountability of parliament, government and corporations are paramount.
Consequently and obviously, the courts are prepared to respect a promise of confidentiality given to a secret source by a journalist. But, as we will see below, this protection, like many fundamental rights and freedoms, is not absolute. It needs to be balanced against other important public interests — one of them being the investigation and prosecution of crime. The courts can decide that, depending on the facts of a case, the public’s interest in protecting a secret source from disclosure may be outweighed by other competing public interests, for example investigation or prosecution of a criminal act.

A recent European Court of Human Rights case provides an example of courts refusing to order disclosure of the secret source. In this case, the plaintiff company Interbrew failed in its efforts to find out who had leaked its confidential documents, disclosing wrongdoing, to the Financial Times, so that it could launch a civil action for breach of confidence against the whistleblower. Publication of the inside information had resulted in considerable loss of share price of the company. The European Court unanimously decided that under Article 10 of European Convention on Human Rights guaranteeing freedom of expression, public interest in the protection of journalists’ sources was sufficient to outweigh any threat of damage through future dissemination of a company’s confidential information or any possibility of obtaining damages for past breaches of confidence, even if considered cumulatively. Thus, freedom of expression and journalistic privilege trumped the confidentiality of information by an employee of a corporation. The source was never revealed.

The European Court of Human Rights in a 1996 Case (Goodwin) elaborated thus: “Protection of journalistic sources is one of the basic conditions for press freedom. Without such protection, sources may be deterred from assisting the press in informing the public on matters of public interest. As a result the vital public-watchdog role of the press may be undermined and the ability of the press to provide accurate and reliable information may be adversely affected.”

An order to disclose sources of journalistic information would violate the guarantee of free expression in Article 10 of the European Convention on Human Rights. The Court added that disclosure orders against journalistic investigations ‘have a detrimental impact not only on the source in question, whose identity may be revealed, but also on the newspaper against which the order is directed, whose reputation may be negatively affected in the eyes of future potential sources by disclosure, and on the members of public, who have an interest in receiving information imparted through anonymous source who are also potential sources themselves’.
This reflects what a famous English Court of Appeal judge said in 1969: “There is a public interest that truth should be out.” — Lord Denning MR.

It is interesting to note that as a result of the Goodwin decision, the Council of Europe’s Committee of Ministers considered the matter so important that it issued a recommendation to its member states on how to implement the protection of journalistic sources in their domestic law, a clear recognition of investigative journalism. However, no fundamental right is absolute. In some cases, the courts may have to weigh up the pros and cons of always upholding secrecy of sources. The courts have to balance the conflicting interests. For example, where a crime has been committed or where the document disclosed has been doctored or is a forgery, freedom of expression may take a secondary position and precedence may be accorded to investigation and prosecution of the crime.

Three recent cases from three jurisdictions illustrate these points. In the 2009 European Court of Human Rights case of Sanoma Uitgevers, the Dutch magazine Autoweek possessed a CD containing photographs of an illegal street race. The magazine had received the photographs on a promise of confidentiality to the participants. The police wanted to seize the CD so that they could prosecute the lawbreakers. The European Court of Human Rights allowed the seizure. In its view, the journalistic privilege does not mean per se that in every case the confidentiality of the source of information should be maintained. It said that courts are not prevented from balancing the conflicting interests served by the prosecution of criminals and protection of journalistic privilege. The considerations to be taken into account include the nature and seriousness of the crimes in question, the precise nature and content of the information demanded, the existence of alternative possibilities of obtaining the necessary information, and any restraints on the authorities’ procurement and use of the materials concerned. The Court stated that while protection of journalistic sources is one of the basic conditions for press freedom, it may be trumped by a justification of an overriding requirement in the public interest. It should be noted that this was a majority decision of 4 against 3. The majority decision has been criticised by commentators as unnecessarily limiting the journalistic privilege.

The second case relevant here is a 2010 Supreme Court of Canada: The National Press Case. M, an employee journalist of the National Post, investigated whether a former Canadian Prime Minister of Canada was improperly involved with a loan from a  federally funded bank to a hotel. X, a secret source, provided M with relevant information in exchange for a blanket, unconditional promise of confidentiality. M received a sealed envelope in the mail that contained a document which appeared to be the bank’s authorisation of its loan to the hotel. This was an explosive revelation, but only if it was a genuine document. When M faxed copies of the document to the bank, to the Prime Minister’s office, and to a lawyer for the Prime Minister, all of them protested and said that the document was a forgery. X told M that he received the document anonymously in the mail. He discarded the original envelope, and passed the document on to M thinking that it was genuine. M trusted X as a reliable source who did not believe that the document was a forgery. X asked M to destroy the document and the envelope. M refused but told X that his undertaking of confidentiality would remain binding as long as he believed that X had not deliberately misled him. Eventually the police got involved and asked the newspaper to produce the document and the envelope as physical evidence of the alleged forgery. The newspaper refused. M declined to identify his source. The police obtained a search warrant to obtain the envelope and the document in order to analyze them for forensic testing (finger printing and DNA testing) to establish the identity of the source of the document. A higher court set aside the search warrant because, although the document may have been a forgery, it was uncertain whether the identity of the source could be established. The judge took into consideration the principle that secret sources were protected under freedom of expression and journalistic privilege. But the court of appeal reversed that decision. On appeal, the Supreme Court of Canada, by a majority of 8 to 1, upheld the appeal court’s decision. The Supreme Court, while recognising the important role of investigative journalism and the need to protect its confidential sources, decided that in some cases the public’s interest in protecting a secret source from disclosure may be outweighed by other competing public interests. The Court said that where a crime is committed, the balance falls on the side of  disclosure. It added that where a source uses anonymity to dupe the public or uses malicious means, it cannot avoid a measure of accountability. The majority of the Court said: “The investigation and punishment of crime is vital in a society based on the rule of law but so are the freedom of the press and other media of communication… The public interest in freedom of expression is of immense importance but it is not absolute and in circumstances such as the present it must be balanced against other important public interests, including the investigation and suppression of crime…”

However, the sole minority judge was more amenable to giving greater leeway to the media. She said that the media’s role in disseminating information is pivotal in its contribution to public debate, and the use of confidential sources can be an integral part of the responsible gathering of the news and the communication of matters of public interest. She added that the significance of journalistic confidential sources cannot be over-emphasized. The chilling effect that could result from the compelled exposure of confidential journalistic sources cannot be ignored. I tend to agree with the dissenting Justice. Search warrants are a cumbersome tool. They can be like using a sledge hammer to crack a nut. Furthermore, as the dissenting Justice in a previous Supreme Court of Canada case [Lessard], observed that the ways in which police search and seizure may impinge on the values underlying freedom of the press are manifest. First, searches may be physically disruptive and impede efficient and timely publication. Second, retention of seized material by the police may delay or forestall completing the dissemination of the news. Third, confidential sources of information may be fearful of speaking to the press, and the press may lose opportunities to cover various events because of fears on the part of participants that press files will be readily available to the authorities. Fourth, reporters may be deterred from recording and preserving their recollections for future use. Fifth, the processing of news and its dissemination may be chilled by the prospect that searches will disclose internal editorial deliberations.
Finally, the press may resort to self-censorship to conceal the fact that it possesses information that may be of interest to the police in an effort to protect its sources and its ability to gather news in the future. She concluded, “All this may adversely impact on the role of the media in furthering the search for truth, community participation and self-fulfillment.” The outcome is that a search warrant against a newspaper or a journalist in order to find out the identity of the secret source can only be issued in rare circumstances.

The third case is from the United States of America. In 2004, a grand jury issued a subpoena to a journalist working for Time magazine to produce certain documents. The district court denied the journalist’s and the newspaper’s motion to quash the subpoena. The newspaper and the journalist refused to obey the subpoena. Both were held in contempt of court. A later subpoena issued to the New York Times journalist Judith Miller resulted in her being jailed for refusing to comply with court orders confirming the subpoena. The background is that President Bush made a claim that Saddam Hussain had tried to obtain uranium from Africa. This proved to be inaccurate, and many newspapers followed up the story. The New York Times published a piece on 6 July, 2003 by former Ambassador Joseph Wilson, in which he claimed that he was sent to Niger in 2002 by the CIA in response to inquiries from Vice President Cheney to investigate whether Iraq had been seeking to purchase uranium from Niger. Ambassador Wilson asserted that the requested investigation was conducted by him and that there was no credible evidence that any such effort had been made.

On July 14, 2003, columnist Robert Novak published a column in the Chicago Sun-Times in which he claimed that Ambassador Wilson had been sent to Niger without the CIA Director’s knowledge. He also stated that ‘two senior administration officials’ told him that Wilson’s selection was at the suggestion of Wilson’s wife, Valerie Plame. The journalist did not stop there. He revealed that Wilson’s wife was a CIA agent. Other newspapers followed similar stories. Obviously, the government was trying to undermine Wilson’s credibility by disclosing confidential matters to journalists. Under US law, disclosure of a CIA officials’ identity is a criminal offence. The subpoenas had been issued in connection with establishing the identity of the government officials who had disclosed a CIA official’s identity. The journalists defended their refusal to disclose the sources on the grounds of privilege both under freedom of expression and various state statutory and constitutional provisions.

The appeal court, relying on previous US Supreme Court’s judgments, rejected their contention and submission. It said that while confidential sources are essential to the workings of the press and the law recognises journalists’ privilege, the privilege must give way to imperatives of law enforcement in exceptional cases, because liberty can only be exercised in a system of law which safeguards order. The end result was that ‘Scooter’ Libby, a White House insider, was found out as the source of the disclosure that Valerie Plame (Mrs. Wilson) was a covert CIA agent, and was convicted for perjury and obstruction of justice. Ambassador and Mrs. Wilson are suing the US government for huge compensation. They are also in litigation with Libby claiming damages from him.

In conclusion, it can be said that freedom of the press and freedom of expression (both enshrined and protected in the Pakistan Constitution) are vital  in a democratic society for the dissemination of information and free debate. The public have a right to know matters of public interest. Their elected representatives, public institutions, government officials and corporations should be transparent and accountable. It is the duty of the newspapers editors and journalists to uncover devious deeds or illegal behaviour. Journalists can use insiders to obtain information of public interest. Journalistic investigations are a crucial tool in the hands of newspapers. Investigative journalism is a recognised and legally protected activity, because the public has a right to be informed about matters of public importance.

Journalistic privilege is a recognised defense against disclosure of confidential sources of information. In appropriate circumstances, the courts are bound to respect when a journalist or editor makes a promise of confidentiality to a secret source. As the Supreme Court of Canada has re-emphasised in the National Post case, freedom of expression protects readers and listeners as well as writers and speakers. It is in the context of the public right to information about matters of public interest that the legal position of the confidential source or whistleblower must be located. The role of investigative journalism has expanded over the years to make democracies transparent and accountable. It should be recognised that unless the media can offer anonymity in situations where sources would otherwise dry up, freedom of expression in debate on matters of public interest would be badly compromised. Important stories will be left untold, and the transparency and accountability of public institutions will be lessened to the public detriment.

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