Protecting sources and whistleblowers in a digital age

A working report published as part of an initiative supported by Guardian News and Media, based on research conducted at the Information Law and Policy Centre, Institute of Advanced Legal Studies. Launched at an event in Parliament on 22nd February 2017

Can you keep a secret? Legal and technological obstacles to protecting journalistic sources

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The 'full liberty of public writers': special treatment of journalism in English law

This thesis investigates whether institutional journalism should receive special treatment at the hands of the law. Special treatment encompasses the affording of benefits to and the imposition of liabilities on journalistic institutions and the individuals who work for them. The arguments against special treatment are pragmatic and theoretical: pragmatic arguments emphasise, inter alia, the difficulty of providing a definition of journalism, and theoretical arguments emphasise the difficulty in explaining why special treatment can be coherent. The former can be addressed by describing how special treatment is already afforded to institutional journalism, both liabilities and benefits, to individuals and institutions, and showing that some of the problems foreseen by the pragmatic arguments have not proved as difficult as they appear. The arguments that special treatment is incoherent can be addressed by arguing that the credibility and assessability of institutional journalism still provide a prima facie rationale for special treatment irrespective of the rise of public speech on the Internet, when combined with the integral nature of journalism to democracy. Two basic arguments are advanced why this is so. The first, the free speech values argument, is a consequentialist account that holds that special treatment is appropriate when (or because) institutional journalism contributes to free speech values. It is attractive, but presents difficulties, both when considered in the abstract and when applied to the free speech value of democracy. The second, a rights-based argument, based on the notion that freedoms of speech and of the Press are distinguishable, can be based on either on Dworkin’s theory of rights as trumps or Raz’s theory of rights as interests. Raz’s account is preferable, as it complements the free speech values thesis in explaining the coherence of special treatment.</p

Is there a global norm for the protection of journalists' sources?

This chapter surveys contemporary international, regional and national law to assess whether it is, and to what extent it is, viable to claim that there is a global norm that protects journalists' sources

Can you keep a secret? Legal and technological obstacles to protecting journalistic sources

Journalists should protect their sources. They should, above all, protect those sources (including whistleblowers), that have provided them with information in confidence. This principle is included in journalistic codes of ethics around the world. It is a precept that is frequently interpreted rigidly, and at times so rigidly that it can put journalists in direct conflict with legal requirements to disclose information. Should a journalist comply with the law but break the ethical rule, the journalistic community will frequently condemn such an act. The prevailing assumption, then, is that journalists should protect a source that has been afforded confidentiality, whatever the personal and organisational cost. This chapter considers whether this assumption is realistic. It surveys some of the contemporary legal and technological obstacles that journalists face in protecting their sources

Misinformation: Technology, Elections and Democracy - Who, what, why, when, where?

This was an international, comparative and historical survey of the phenomenon of misinformation and fake news; and a brief analysis of some contemporary policy and legislative responses to it

The 'Full Liberty of Public Writers': special treatment of institutional journalistic speech in English law

This paper is an investigation into one aspect of the constitutionality of journalistic freedom in the law of England and Wales. It argues that there are instances where the law provides special treatment for the expression of institutional journalists, and that this is legitimate. The paper has two distinct parts, the doctrinal and the theoretical. Chapter one is doctrinal, and establishes that the law does provide special treatment to institutional journalistic speech. It classifies such treatment, demonstrating that these privileges come in different forms, and create different layers of rights. These forms can be distinguished according to whether the privileges are afforded to institutional journalists or functional journalism, or merely to general speech. The theoretical part of this paper forms chapters two and three. Chapter two assumes that the provision of special treatment to institutional journalists is justified where institutional journalistic speech particularly promotes free speech values. It argues that institutional journalistic speech does indeed perform such a function, by virtue of particular characteristics it possesses, namely reach and reputation, which are employed in processes such as reporting, investigating and interrogating. Chapter three considers the counter-arguments to this position. First it considers some arguments that challenge the thesis assumed in chapter two, and then it considers more specific criticisms of the provision of special treatment to institutional journalistic speech. It concludes that, while these limit the validity of the law’s affording special treatment to institutional journalistic speech, they do not extinguish it