Regulating the Confidentiality of Journalistic Sources in Israel

A. Definition of which journalists are entitled to RP

One key factor undermining attempts at RP legislation is the difficulty of defining which journalists will be its beneficiaries. Legislative proposals presently being considered by the Knesset would sidestep this obstacle by leaving the decision to the discretion of Government ministers or other State authorities. We believe it would be wrong to do so, because the Executive Branch might be tempted to narrow its definition and reduce the scope of the protection provided.

Our proposed definition is derived from the objective of confidentiality maintenance of trust between source and journalist so as to facilitate gathering of information. It also addresses journalistic practice in the Internet Age, when the chief contributor to the marketplace of ideas and opinions is not the printed press, but the blogosphere and social networks, and journalists are not limited by the medium in which they function. On the other hand, the proposed definition is not so broad as to have any substantive adverse effects on the evidence and witnesses the courts require to uncover the truth in matters that come before them

The proposed definition is as follows:

A journalist is any person who engages actively or professionally in gathering information and distributing it to the public; alternatively, any member of Israel’s media professions who works in news production whether as a salaried employee or a freelancer.

For the purposes of this definition, “information” means any declaration of fact, opinion, or idea in a textual, audio, or video format.

Should people who do not contribute substantively to the dissemination of information required by the public attempt to invoke the protection provided by RP, the courts would be authorized to limit the scope of the protection that this definition accords through interpretation or legal doctrine (e.g., abuse of legal rights). On the other hand, confidentiality will also apply to those who assist journalists, as well as to journalists’ superiors, in keeping with the proposed definition.

B. Who is entitled to journalistic confidentiality

According to the conception currently prevailing in the courts and in proposed legislation, confidentiality applies to the source and not to the journalist. Consequently, it is the source who is entitled to forgo this privilege. This approach conforms with the notion of professional confidentiality, in which it is the client who is granted the privilege. At the foundation of this conception is a desire to encourage clients to convey information to professionals and receive the best possible service from them. We believe that RP demands a different logic, however, as it seeks to promote the journalists’ objective of gathering information and ensuring its free flow to the public. Consequently, RP is an institutionalized form of confidentiality rather than a professional one, based on the rationale of social benefit, rather than privacy.

We maintain that RP should be interpreted as applying to journalists. If a source refuses to reveal his/her identity and the information conveyed, but the journalist seeks to make them public, the courts may permit such disclosure. If the respective positions are reversed, however, the courts need not interpret the source’s consent as a waiver of confidentiality. Only in extraordinary cases will court rulings obligate journalists to reveal their sources and the information provided. Notwithstanding, we note that where the journalist is reticent, sources may still reveal the relevant information outside the courts if they so desire.

While our proposal empowers journalists in their interaction with their sources, we also believe that an optimal balance of the relations between them requires two types of source empowerment:

1. Entrenching the source’s right to sue a journalist if a confidentiality agreement is violated.
2. Amending Section 117 of the Penal Code, which deals with the disclosure of information by civil servants, so that it applies only to situations in which such disclosure would pose a significant risk to the public interest and existing legal prohibitions do not address the issue adequately.

The proposal originates in our basic idea that it is appropriate to empower journalists so that they can do their job and help maintain the democratic process, while encouraging sources who are ethically motivated to provide information.

C. RP as protection from interrogation and searches

Practices that authorize the interrogation and searches of journalists, whether by law-enforcement authorities or the courts, threaten RP. If the authorities can pressure journalists, intercept their communications, or follow them, there is no need for legal procedures to rescind RP, because the authorities can obtain the information by these means in any case. In the spirit of the Maoz Commission Report and the recommendations advanced by Dr. Yisgav Nakdimon—and in response to the special threats prevailing in the Digital Age—we recommend instituting the following measures to ensure that RP applies equally to investigation and search processes:

1. Legislation: The enactment of laws to regulate search and investigation procedures, in place of internal police rules or directives.
2. Obtaining access to data about journalists’ telecommunications: Requests for information concerning journalists’ telecommunication data, pursuant to the Criminal Procedure Law (Enforcement Powers Telecommunications Data), would have to be signed by a senior police official and not by just any police officer. When the court decides whether to issue such an order, it will consider the consequent adverse effects on freedom of expression and the press and not only on the right to privacy.In the spirit of the Citrin Rule, the court will determine whether the dataare essential for the matter at hand—if they are necessary to preventa crime, to implement justice regarding a criminal act, or to prevent aserious miscarriage of justice in legal proceedings—and whether itwould be impossible to exert reasonable effort and uncover sufficientevidence by alternative means.                                                                                               These considerations must be taken into account because investigation and search procedures might otherwise reveal the identities of journalists sources and thus render RP devoid of content. Regarding other types of professional confidentiality, one may claim that telecommunications data themselves do not reveal the essence of client-professional relations and their revelation does not damage such relations. In the case of a journalist and his/her source, however, the latter’s identity is generally the principal type of information for which confidentiality is sought, yet it may be revealed easily once telecommunications data are obtained.
3. Wiretapping: The conditions for authorization of the wiretapping of persons with RP should be equivalent to those that apply to persons entitled to professional confidentiality, as stipulated in the Evidence Ordinance. Similarly, “persons with RP” should be added to Sections 9 and 9A of the Wiretapping Law.
4. Inviting journalists to state their positions before court orders are issued: The law should stipulate that whenever an enforcement agencyrequests a court order against a journalist, said journalist should be invited to present his/her position, provided the investigation process is not disrupted thereby. Alternatively, the courts may extend invitations to bodies with an interest in freedom of the press, such as the Press Council.

D. Conditions for revocation of RP

The key condition for revocation of RP should be the imperative need for disclosure of the matter in question. We believe that it should be possible to revoke confidentiality only if disclosure of the information possessed by the journalist would contribute substantively to the judicial process.

We maintain that even if the four conditions of the Citrin Rule are met and information submitted by sources must be revealed, the law should mandate that the scope of disclosure be limited to what is required by the relevant public or private interest. Proportional disclosure is also stipulated in foreign legislation and recommendations, such as those issued by the Council of Europe.

In its deliberations, the court will take three additional considerations into account: whether RP is being invoked in civil or criminal proceedings whether the journalist is serving as a witness or litigant, and whether disclosure is essential for a defendant’s conviction or exoneration.

E. Abrogation of the contract between journalist and source 

As a result of the Glatt-Berkowitz and Anat Kamm affairs, which are still being adjudicated, the courts will have to establish hard and fast rules regarding journalists’ obligations towards their sources. We propose allowing the imposition of contractual responsibility on journalists who violate RP subject to the following considerations:

1. The reliability of the information conveyed by the source to the journalist and whether it is essential to bring said information to the public’s attention.
2. How disclosing the source’s identity will affect the media’s goal of keeping the public informed and promoting political, social, and economic dialogue.
3. The circumstances in which the confidentiality agreement was drawn up especially the source’s reason(s) for requesting confidentiality
4. The journalist’s reasons for violating the confidentiality agreement and the extent to which confidential information has been revealed
5. The severity of the damage to the source.

To help sources prove the existence and terms of the agreement, we propose posting a basic version of an agreement between source and journalist on several accessible websites, such as that of the Government Press Office major newspapers and television stations, and social media. This basic agreement would include the following essential points:

1. Informing the source of his/her legal status and the risks involved in conveying information to journalists.
2. Informing the journalist of the terms of the agreement that he/she is obligated to fulfill and of the risks to which he/she will be exposed if such obligations are not met.
3. Basic elements of the agreement between journalist and source: This section will clarify the terms and eliminate common ambiguities in agreements between journalists and their sources.

F. Procedural Recommendations

We recommend that legal proceedings to revoke RP take place behind closed doors, as the Evidence Ordinance requires in cases involving professional confidentiality. We believe that legal proceedings about claims of confidentiality should be suspended pending clarification of this issue. Furthermore, even in cases in which RP was revoked and the journalist was required to testify, the courts should retain the option of hearing such testimony behind closed doors. These procedural conditions would help avoid undue harm to the interests of sources and journalists.