Qatargate and Reporter’s Privilege

The police summoned three journalists to testify as part of the investigation into links between the Prime Minister’s advisors and Qatar. Unlike other privileged relationships, reporter’s privilege is not grounded in law in Israel. Why is that and when are journalists asked to reveal their sources?

Photo by Jonathan Shaul/Flash90

What is reporter’s privilege?

Journalistic sources and leaks from people with inside knowledge form the basis for the activities of the press. For the most part, those who hand over sensitive information and materials to journalists wish to remain anonymous, for various reasons. This may be because:

• They are public servants. Section 117(a) of the Penal Law states that a public servant who illegally hands over information that they received due to their position to a person who was not authorized to receive it, even if they did so once they were no longer a public servant, is to be sentenced to three years in prison.
• They are bound by a contract with a private company.
• They do not want to be seen as “informers,” or as accomplices to a criminal act, for fear that their good name will be damaged or their families harmed.

During judicial proceedings or police investigations, reporters may be asked to reveal their sources, what they learned from them, or what materials they received from them. This may happen when, for example, an investigation is launched into a leak of classified material that was made public, or into some event documented by a journalist (for example, violence at demonstrations or disturbances of the peace).

In such cases, disclosure of the source or of the materials may help enable the police and the courts to establish the truth.

On the other hand:

1. When sources know that reporters can be forced to reveal who they are, they will not reveal anything to them, which will greatly harm freedom of the press and the public’s right to know.
2. The police may be tempted to take shortcuts, and instead of conducting their own investigation, to approach journalists and demand that they hand over materials in their possession.

The option that journalists have of not revealing their sources is known as “reporter’s privilege.” Privilege is an arrangement designed to create a relationship of trust between certain professionals and their clients (for example, between lawyers and their clients, doctors/psychologists/social workers and their patients, or priests and confessors), which exempts these professionals from disclosing information about their clients. For example, they are exempted from having to hand over to the police or the courts their correspondence and records of conversations with their clients; it is forbidden to eavesdrop on their conversations with their clients; and it is forbidden to obtain their communication data (who they spoke to on the phone and for how long). 

What does the law say about the limits of this privilege?

Reporter’s privilege, on the other hand, is not enshrined in law in the State of Israel. Thus, it is ostensibly possible to compel journalists to testify to the police or in court about their sources and about the information they received from them, and if they refuse, to convict them of an offense such as contempt of court or obstruction of justice.

Over the years, there have been various discussions in Israel about whether to ground reporter’s privilege in law, given its importance for protecting investigative journalism. In 1993, a special public committee was established on this issue, called the Maoz Committee, which recommended that this privilege should indeed be enshrined in legislation. Following the committee’s report, the Ministry of Justice prepared a memorandum for an amendment to the Evidence Ordinance, which to this day has still not been developed into a bill. The main reason for this is that no definition was reached for who should be considered a “journalist” for the purpose of applying the law. 

However, the courts have anchored reporter’s privilege in case law.

The 1987 judgment in the Citrin case concerned an incident in which journalists Ben Zion Citrin and Yifat Nevo refused to hand over their sources to the disciplinary court of the Israel Bar Association, and the court fined them for contempt of court. The journalists appealed, and their case eventually reached the Supreme Court. Justice Meir Shamgar ruled that, in light of the importance of freedom of the press and freedom of expression, reporter’s privilege should be recognized. However, because this privilege is not grounded in law, it remains subject to the discretion of the courts.

The courts may force reporters to reveal the identity of their sources only when this is essential for the performance of justice and only if the following conditions are fulfilled:

1. Relevance—the identity of the source is relevant to the legal proceedings
2. Essentiality—the identity of the source is essential for justice to be done in important cases (for example, regarding criminal offenses or serious misdemeanors)
3. Necessity—there is no other evidence available unless privilege is revoked

Reporter’s privilege is also grounded in journalistic ethics—for example, in the Israel Press Council’s Code of Ethics, section 12:

1. Journalists shall not publish information given to them on the condition that it not be published.
2. Journalists shall not reveal information given to them on the condition that it not be shared, and they shall not reveal—by action, by failure to act, or by not taking sufficient security measures to protect the information—the identity of a confidential source.

What does reporter’s privilege apply to?

The privilege applies to the identity of the source and to any information that could indicate that identity.

Examples include:

1. Makor Rishon, 2012. The late Miri Tzachi, a press photographer with the paper at the time, photographed riots by settler youth at a military base. The police issued a warrant for her to hand over the pictures she took. In response, Tzachi argued that reporter’s privilege applied to the pictures, as revealing them would lead to the identification of her sources. The Supreme Court ruled that reporter’s privilege also applies to content that, if revealed, could lead to the uncovering of a source, such as photographs via which a journalistic source could be identified.
2. Channel 2 news company, 2015. In July 2015, Channel 2 broadcast an interview conducted by its correspondent Guy Peleg with Einat Harel, who was suspected of pandering, running an establishment for prostitution, and money laundering. In September 2015, the Israel Police filed a request with the court to issue an order instructing the Channel 2 news company to hand over all the raw material used to prepare the item. The court granted the request ex parte. The Channel 2 news company then filed a request to revoke the order, claiming reporter’s privilege, which it argued applies not only to the identity of the source but also to all the information collected as part of reporters’ journalistic work. In January 2016, the judge ruled that the Channel 2 news company would not be obligated to hand over the raw material and that reporter’s privilege should be expanded to apply not only to the identity of reporters’ sources, but also to the material they collect during their journalistic work, even if this material is not broadcast. The judge noted that the police must be especially careful when issuing warrants for raw materials from media outlets. At the same time, it was noted that this protection is not as strong at that applying to the identity of sources.

Summary and Conlcusion:

When reporters are summoned to give open testimony and asked to provide names of their sources, or materials given to them by their sources:

• It is accepted practice to seek authorization from the attorney general and the state attorney for a summons of this kind, to prevent the police from misusing their powers in order to deter journalists. This was done in the current case, as stated earlier this morning by the attorney general and the state attorney.
• Reporters have the right to say: “I do not testify about things that can expose my sources, because that is forbidden by my professional rules of ethics and by court rulings.”
• The police must then turn to the courts, which will decide whether reporter’s privilege should be respected in a given case, or whether the journalist should be obliged to disclose their sources, in accordance with the conditions listed above.
• Suspicions against reporters of having engaged in matters that deviate from their professional practice of maintaining journalistic sources and collecting journalistic information—for example, mediating in various matters or receiving funds of one kind or another—are in a different category, and should be examined at the factual level.
• The investigation in the current case is complex and to a large extent reminiscent of Case 4000, because what is under examination is whether different parties acting out of various interests attempted to influence press coverage and to cause reporters to create a certain narrative. This being the case, it is necessary to clarify the role of the journalists in this chain of events: whether they were in contact with the main suspects in the affair; what they received from those suspects; what they did with what they received, and how this was ultimately linked to the press coverage; and whether they suspected or confronted those who asked them for certain things.
• The journalists will also be asked, of course, whether they received benefits of any kind as a result—ranging from good relations, exclusivity, and/or interviews with senior officials (which are allowed) to covertly receiving money or prohibited personal favors.
• Thus, the current case is also an opportunity to examine the inner workings of the press machine, and not just of the decision-making machine in the prime minister’s inner circle. The importance of professional and ethical conduct by journalists—for the sake of public trust in them and in the institution of journalism—is being made clear here once again.