Freedom of Speech – Defamation, Sedition, etc.

Disclosure of Journalistic Sources by Press

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Article 19

Mains level : Freedom of press

press

While rejecting a closure report filed by the CBI, a Delhi court said there is “no statutory exemption in India to journalists from disclosing their sources to investigating agencies”.

What is the news?

  • The CBI had sought to close its investigation on how certain news channels and a newspaper had aired and published reports related to a disproportionate assets case against a leader.
  • It had argued that the “documents used by the news channel were forged” but it could not be established who forged the documents.
  • This certainly amounts to creation of fake news.

Legal protection for disclosure of Journalistic Sources

Ans. Freedom of Speech and Expression under Article 19

  • In India, there is no specific legislation that protects journalists from being asked to disclose their sources.
  • Article 19 of the Constitution guarantees the right to freedom of speech and expression to all citizens.
  • Investigative agencies can issue notice to anyone, including journalists, to provide information.
  • Like any citizen, a journalist can be compelled to give evidence in Court.
  • If she does not comply, the journalist can face charges of Contempt of Court.

Freedom of Press

  • The fundamental right to freedom of speech and expression under Article 19 includes press freedom.
  • This covers an entire process from newsgathering, editorial judgement, publication and distribution of printed matter.
  • Press freedom covers all four stages.

 What have courts said on this issue?

  • While the Supreme Court broadly recognises the freedom of the press, including the right of journalists to ensure the protection of their sources, various courts have ruled differently on this issue.
  • In the Pegasus spyware case (2021), the Court underlined that the protection of journalistic sources is one of the basic conditions for the freedom of the press.
  • In 2019, the Supreme Court in a review petition in the Rafale case overruled the Centre’s objections on the petitioner’s claims since they relied on purportedly “stolen” confidential documents.

Is there any legal enforcement?

Ans. No

  • Courts have in “public interest asked journalists to disclose their sources. In the absence of a specific law, it is often the discretion of a Court.
  • Under the Press Council of India (PCI) Act, of 1978, the Press Council has powers of a civil court to deal with complaints when a newspaper has “offended against the standards of journalistic ethics.”
  • However, the Council cannot force a newspaper, news agency, journalist, or editor to reveal their sources during the proceedings.
  • The Whistleblower Protection Act, 2014 offers protection to people disclosing acts of corruption, wilful misuse of power, or criminal offences by public servants, in public interest.

Recommendations for a change in law

Ans. Recognition under Indian Evidence Act

  • The Law Commission of India in its 93rd Report in 1983 recommended recognising journalistic privilege by amending the Indian Evidence Act.
  • In its 185th report on the amendments to the Evidence Act, the Law Commission again suggested this amendment.

Position in other countries

  • United Kingdom: The Contempt of Courts Act 1981 creates a presumption in favour of journalists who want to protect the identity of their sources. However, that right is subject to certain conditions in the “interest of justice”.
  • United States: Although the First Amendment guaranteeing free speech in the United States specifically mentions the press, the Supreme Court has held that journalists do not have the right to refuse to testify in a federal grand jury proceeding and disclose sources.
  • Sweden: The Freedom of the Press Act in Sweden is a broad protection of rights of journalists and even extends to state and municipal employees who might share information with journalists freely. In fact, a journalist who reveals his or her source without consent may be prosecuted at the behest of the source.
  • France and Germany: Journalists can refuse to disclose sources in an investigation.

Need for non-disclosure

  • Debated issue: The right of journalists to use and protect confidential sources is a debated topic.
  • Vitality of larger public interest: Many journalists say that confidential sources are an essential tool in the search to uncover information of great public interest.
  • Prevent oppression: It is a reporter’s need and duty to protect the identity of the source of his information or else vital information of concern to the people in a democracy would be suppressed.

Why are we discussing this?

  • Media malpractices are on rise: When the public interest is compelling and the disclosure outweighs the public interest then the sources can be revealed.
  • Serious allegations and media trial: The court can also require disclosure of the source of the news relates to a public office or public official and serious allegations have been made against him.
  • Defamation by media: Also if there is a defamatory article against a person then the Court may compel the journalist to reveal his source.

Why media needs protection for sources?

Where source protection is compromised, the impacts can include:

  • Pre-publication exposure of journalistic investigations may trigger cover-ups, intimidation, or destruction of information,
  • Revelation of sources’ identities has legal or extra-legal repercussions,
  • Sources of information running dry,
  • Self-censorship by journalists and citizens.

Conclusion

  • Indian law on source disclosure is limited and has mostly been determined by courts on a case-by-case basis.

 

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