During the trial of Jacob Zuma the media will no doubt come under the spotlight in terms of the way it deals with sources, witnesses and off-the-record discussions.
As background, it is key for journalists to remember that in common law there is no such thing as journalistic privilege – they can be subpoenaed to testify on any information, whether they have published that information or not. All journalistic hope is hung on the rack of the freedom of expression clause in the Constitution. Accordingly, where local journalists choose not to name a source, they may be faced with a jail sentence similar to the one Judith Miller of the New York Times recently endured (in fact, Miller spent more time in prison than any US journalist in history for refusing to disclose her source).
In South Africa, in terms of section 205 of the Criminal Procedure Act, a judge may require a journalist to appear in court if they are likely to give material or relevant information as to any alleged offence. One of the ways that journalists may fight these subpoenas is to offer a “just excuse” for their failure to provide the information. However, the court is unlikely to rule that journalistic privilege and an off-the- record discussion on their own constitute a just excuse, especially if “national interest” is at play.
A just excuse would need to be defined on a case-by-case basis. The courts in such instances, and where the stakes are particularly high, would need a good deal of help from the journalist on a prima facie reading of the facts in order to rule in his/her favour. There is no doubt that journalists can become embroiled and manipulated in matters that have political implications, and a desire to retain confidentiality can easily backfire on the press and accordingly impact on the future of freedom of expression in South Africa.
The South African National Editors’ Forum (Sanef) guidelines on “confidential briefings and sources” are informative as to the way journalists should approach off-the-record discussions with sources, and may minimise problem areas. The main points are:
- it is preferable to get on-the-record statements and anonymity should be the last resort;
- in the event that a source goes off-the-record, multi-sourcing is preferred to corroborate a story. In this regard, anonymous sources should have direct knowledge and evidence of the story;
- editor-level approval should be required for use of anonymous sources as editor involvement will no doubt help the profile of the case should it become a matter of dispute;
- a story should usually indicate in its contents the reason why the source wishes to remain anonymous;
- although journalists are ethically bound to their sources, they should qualify their commitment on confidentiality in all matters to the source at the outset.
While the Sanef guidelines provide a solid benchmark for journalists in terms of the potential legal ramifications of off-the-record discussions, there are certain key points that should be highlighted. Firstly, the journalist must ensure that the source knows that his/her identity may need to be disclosed to the editor (the source may see this as a breach of confidentiality). Secondly, journalists must know whether they will be able to defend their own participation in the story -will the parent organisation back them financially? Finally, is the source’s information even worth defending? The way things stand, the ultimate question is always: will the journalist be able to resist a subpoena on the facts presented by the state?
Accordingly, the media at large should be placing pressure on the courts to ensure that the notion of privilege and just excuse takes cognisance of the ethics binding journalists. Furthemore, to give credence to the freedom of expression clause in the Constitution, a distinction needs to be made between published and non-published information. Dealing with these issues will be the first steps in carving out a working formula of journalistic privilege.
Greg Hamburger is an attorney at Rosin Wright Rosengarten, a firm specialising in entertainment and media law based in Johannesburg. Visit the firm’s website at www.rwr.co.za.