FXI wants better protection for confidential sources

The Freedom of Expression Institute (FXI) has asked the South African Law Reform Commission (SALRC) to investigate amending section 205 of the Criminal Procedure Act (CPA) to introduce a “shield law” to protect confidential journalistic sources and information.

The recent debacle over issuing subpoenas calling for two e.tv journalists to divulge their sources and confidential information highlighted the controversial point at which conflicting rights collide and the manner in which section 205 is abused, the FXI said in a statement on Tuesday.

The interests of effective administration of justice and maintenance of law and order competed with the right to freedom of expression.

Moreover, it demonstrated the urgent need for clear legislation to clarify otherwise vague and untested common law principles and constitutional concepts.

At the core of this conflict lay the question whether the public interest in compelling the journalist to reveal his or her source or confidential information clearly outweighed the public interest in the free flow of information, the FXI said.

Clear and precise terms
It was essential that legislation be enacted that explicitly protected the confidentiality of journalistic sources and information from unfettered disclosure.

Moreover, the right to refrain from revealing confidential information should extend to all persons who directly contributed to gathering, editing, producing or distributing information to the public by way of a medium, as well as those who might obtain knowledge of information in the course of their professional relations with a journalist that could lead to the disclosure of a source.

The right to refuse to disclose the name of a source or to provide other information which might disclose the source’s identity should extend to unpublished materials, notes, documents or other materials such as photographs and video footage obtained during the course of their work.

The legislation should state in clear and precise terms the conditions under which compelled disclosure of confidential information was allowed.

In keeping with international human rights standards and best practice, a disclosure order should be limited to circumstances where:


  • the information sought was necessary to prevent imminent and actual serious bodily harm;
  • the information was absolutely necessary for a central issue in a case relating to guilt or innocence;
  • it could be shown that the information could not be obtained by other means; and
  • the court was satisfied that the public interest in the compelled disclosure of the confidential information outweighed the public interest in the free flow of information.

Alternatively, the FXI recommended that section 205 of the CPA be amended to protect the right of journalists to refuse to disclose the identities of their confidential sources.

Such legislation would bring South African law in line with international human rights standards and best practice as it would explicitly recognise the right of journalists and other media practitioners to refuse to reveal confidential sources, and would expressly limit such right only in cases where it was reasonable and justifiable to do so, the FXI said. — Sapa

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