This statement was originally published on article19.org on 14 August 2015.
ARTICLE 19 has responded to the call for comment on the protection of journalists' sources and whistleblowers, made by the UN special rapporteur on the right to freedom of expression.
The UN free speech watchdog, David Kaye, will present his thematic report on the issue of protection of journalists' sources and whistleblowers to the UN General Assembly in October 2015.
ARTICLE 19 believes that the current recognition in international law of both protection of journalists' sources and whistleblowing is in need of further normative elaboration. While both have received international recognition as rights, there has been limited development of standards.
Protection of journalists' sources has had significant recognition at the regional level, especially in Europe, but only summary recognition by UN bodies. In relation to whistleblowing, standards have been mostly focused on its function as an anti-corruption measure, rather than as an element of the right to freedom of expression.
The media depends on contacts and information from sources for information-gathering and reporting, and it is crucial that sources are able to remain unidentified by the authorities and the public, as their disclosures and testimony might have repercussions for them. Public access to critical information often relies on these sources, and their willingness to share information is regularly conditional on confidentiality.
Although many countries and courts have recognised the importance of the right to protect sources and their identity, more elaboration of international standards is needed, both in terms of defining the term 'journalist' in the digital age, and in terms of ensuring that protections of this right are not circumvented by premise-searches, confiscation of research materials, forced testimony, and communications surveillance.
ARTICLE 19 recommends that each State adopts a law which should:
- apply to all persons involved in a process carried out with the intent of providing information to the public;
- protect journalists from having to disclose the identity of sources, unpublished materials, notes, documents or other materials that might reveal information about their sources;
- limit demands to protected information to the most serious criminal cases, in which it is strictly necessary;
- protect journalists and sources from surveillance which has the intent to reveal source identity or information; and
- provide for sanctions and damages in cases where protections have been violated.
A whistleblower is an individual who has inside knowledge about the activities of an organisation and makes a conscious and voluntary decision to reveal the existence of an activity which is unlawful, unethical, dangerous, improper, incompetent, or otherwise in the public interest to know.
Whistleblowers form an integral part of freedom of expression, and indeed the right to freedom of information, but there are few comprehensive pieces of legislation which protect them, or provide adequate sanction or remedy in cases where they have been unjustly reprimanded. Furthermore, the requirement, found in many pieces of legislation, that the whistleblower prove that the disclosure was made in 'good faith' is problematic, and often functions to prevent appropriate protection for public interest disclosures.
A particularly problematic area is that of whistleblowing in relation to national security: legislation regarding 'official secrets' and bodies tasked with protecting national security are often complicit in the silencing of whistleblowers' voices. Whistleblowers in national security situations must have the same protections and mechanisms of those in other cases.
ARTICLE 19 recommends that whistleblower protection is established in legislation which:
- has a wide application and should cover a wide variety of information in the public interest, including violations of laws, rules and ethical norms, abuses, mismanagement and misspending, failures to act, and threats to public health and safety;
- recognises the importance of whistleblowing as an exercise of free expression, with any limits being subject to international law;
- does not incorporate a 'good faith' requirement;
- sets reasonable requirements to encourage and facilitate internal procedures for the disclosure and reporting of wrongdoing;
- creates or appoints an independent body to receive reports of violations of law, maladministration and other issues, advise whistleblowers, and investigate and rule on cases of discrimination; and
- has a broad definition of retribution that covers all types of employment sanctions, harassment, loss of status or benefits, and other detriments.