Journalists’ source privilege is in the air. In the US, the House of Representatives has recently passed a (not particularly readable) Bill recognising a journalists’ source privilege (the Free Flow of Information Act of 2009), and it has been introduced into the Senate. In the UK, a prosecution of a local newspaper journalist and the police source who “leaked” stories to her was recently dismissed (indeed, a similar case against a member of parliament will also not proceed, though another is still pending).

On a judicial level, the Trial Chamber of the Special Court for Sierra Leone (SCCL) (pdf) (noted on the CPJ blog), relying on the earlier decision of the Appeals Chamber of the International Criminal Tribunal for the Former Yugoslavia (ICTY) in Prosecutor v Bradjanin and Talic (11 December 2002), held that a Liberian journalist did not have to divulge the names of those who facilitated his access to a war zone. In Sanoma Uitgevers BV v the Netherlands Application no 38224/03 (31 March 2009) (noted in my previous post), building on its seminal and hugely influential decision in Goodwin v UK Application no 17488/90, [1996] ECHR 16 (27 March 1996), the European Court of Human Rights (ECHR) explored the limits of such a privilege.

Moreover, in Ireland and Canada, cases are pending in both countries’ Supreme Courts on the question of the nature and extent of journalists’ source privilege. So, it’s a good time to try to clarify some of the important issues which arise. In particular, a key question, often overlooked, is whether the privilege inheres in the journalist or the source. For my own part, I would say that privileges inhere in both the journalist and the source, that they are two different privileges, and that they arise and are lost in very different ways.

On the one hand, most constitutional discussions of the journalists’ source privilege are constructed upon constitutional protections of freedom of expression and media rights, and thus generate a privilege for journalists [the journalists’ privilege]. Similarly, when civil lawyers think about journalists’ source privilege, they usually think in terms of the journalists’ privilege. More than that, most public discussion of journalists’ source privilege make the same assumption. On the other hand, when common lawyers think about journalists’ source privilege, conditioned by classic common law privileges, they often think about a privilege for sources by which journalists are bound [the sources’ privilege]. And there is a very important difference between these two privileges. Where the privilege inheres in the source, then once the source waives the privilege, it is lost, and the journalist can no longer assert it. By contrast, where the privilege inheres in the journalist, it is the journalist’s decision – and not that of the source – whether or not to waive the privilege. For this reason alone, it is important to understand which species of privilege is at issue in any given case.

At common law, the sources’ privilege is an evidential one, arising in individual circumstances, on the basis of the Wigmore criteria, and limited on that basis. And, as the decisions of the Ontario Court of Appeal in R v The National Post 2008 ONCA 139 (CanLII) and of the Irish High Court decision in Mahon v Keena [2007] IEHC 348 (23 October 2007) demonstrate, whilst this kind of privilege can often easily be raised, it can just as often be just as easily lost, so that the circumstances in which courts override the sources’ evidential privilege and oblige journalists to reveal their sources’ identities are in practice quite broad.

There are many ways in which constitutional considerations could affect this analysis; in particular, a court could hold that, whilst the privilege is still that of the source rather than of the journalist, the balancing test to be undertaken under the fourth limb of the Wigmore test must acknowledge the importance of freedom of expression and in particular of the role of the media in that context. This would give rise to questions about whether freedom of expression is automatically a matter to be placed in the balance, or whether it is something that must be argued for. The effect would be to tilt the balance of the argument, but it is still no more than a modification of the Wigmore criteria, and it is still a privilege of the source.

However, the main impact of a constitution in this field is not to modify the common law sources’ privilege but to generate an independent journalists’ privilege. Although the US Supreme Court in Branzburg v Hayes 408 US 665 (1972) (FindLaw | Justitia | New York Times | Oyez | Wikipedia) was equivocal about the existence of such a constitutional privilege, the European Court of Human Rights in Goodwin v UK Application no 17488/90, [1996] ECHR 16 (27 March 1996) unambiguously derived one from Article 10 of the European Convention on Human Rights. Where the journalists’ privilege is not evidential but constitutional in origin, then the circumstances in which that right can be infringed – as by an order to reveal sources – would have to be very narrow, as any infringement upon a constitutional right would have to be. This may be expressed either in balancing terms (how to balance the rights of the journalists’ against the needs of administration of justice?) or in proportionality terms (is the infringement of the journalists’ rights both necessary and proportionate to a legitimate aim?). The difference between the majority and the minority in Sanoma Uitgevers shows the difference between these approaches. Either way, however, this is a rather tougher test to overcome than the common law evidential approach.

Some US analyses distinguish between a federal common law privilege and a constitutional one, but in In Re: Grand Jury Subpoena, Judith Miller 397 F 3d 964 (2005), whilst the US Court of Appeals for the DC Circuit considered both species, it nevertheless held that Judith Miller could rely on neither to resist a summons to testify before a grand jury. On the other hand, given the lower court decisions in issue in the appeals, it is unlikely that the decisions of the Supreme Courts in Canada and Ireland will distinguish between these various strands of argument, and that makes it much harder to predict what the they will do. Nevertheless, whatever they do, it is clear that privileges inhere in both the journalist and the source, that they are two different privileges, and that they arise and are lost in very different ways.