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Between privilege and subpoena: Protecting confidential sources

Recent events in South Africa and elsewhere have focused attention on the position of journalists faced with legal action aimed at discovering the identity of confidential sources. It is widely accepted that journalists have an ethical obligation to protect the identity of confidential sources. The obligation derives from the central role that journalism plays in democracy, yet in South Africa it may bring journalists into conflict with legal measures aimed at forcing disclosure. This article explores the rationale for the protection of confidential sources and compares the normative ethics and jurisprudence relating to protection of sources in various jurisdictions, including South Africa. It examines processes currently under way to establish legal protection of journalists against forced disclosure, and considers options that may be pursued. It concludes that any such measure should cover both criminal and civil proceedings, and suggests that the answer may lie in the proper interpretation of the right to freedom of expression to accord a qualified privilege to journalists.

Keywords: Confidential sources, Criminal Procedure Act, democracy, ethics, freedom of expression, journalism, media freedom, media law, privilege, South Africa, subpoena