New report on secret sources: protecting journalistic sources and whistleblowers in a digital age

Thursday 23 February 2017

Whistleblowers are under attack by those they report on and confidential sources are increasingly compromised by state surveillance. A new report launched today – ‘Protecting sources and whistleblowers in a digital age’  aims to address these issues and makes ten recommendations for policymakers, lawmakers, news organisations, researchers and NGOs on how to protect the people who provide journalists with valuable information.

Co-authored by Dr Judith Townend and Dr Richard Danbury – associate research fellows at the Information Law and Policy Centre at the Institute of Advanced Legal Studies (IALS), part of the University of London’s School of Advanced Study – the report is based on research supported by Guardian News and Media, publisher of the Guardian and Observer newspapers, and suggests a legal framework for assessing the conditions necessary to provide protection.

Key findings show that the expansion of digital communications and monitoring has coincided with increased sensitivity to security issues in many countries, posing particular challenges to traditional legal protections for journalists’ sources. In addition, recent UK government legislation and policy, such as the Investigatory Powers Act and the proposed Digital Economy Bill, can substantially weaken protections. Since the report was written, similar concerns have been raised in relation to the Law Commission’s preliminary proposals in its consultation on ‘official data’ and reform to the law on official secrets (see Update). 

‘This project was prompted by our increasing concern about the difficulties faced by journalists when dealing with confidential sources and the potential impact on freedom of expression and investigative journalism in the public interest,’ said Dr Townend.

‘Our expert group identified issues that have only heightened this concern so we are calling on policymakers and lawmakers to strengthen legal protections for journalists and whistleblowers,’ said Dr Danbury.

The report draws on discussions around policies and legislative proposals that affect investigative journalism and protection of sources within an environment of rapid technological change that took place between investigative journalists, representatives from relevant NGOs and media organisations, media lawyers and specialist researchers at IALS in September 2016.

The report recommends that:

Policymakers and lawmakers should [1]: Guarantee that the Investigatory Powers Act Codes of Practice sufficiently protect journalists and their anonymous sources, in ways compliant with the UK’s international human rights obligations; [2] Make certain that the judicial oversight regimes are designed and operate in a way that sufficiently protects journalists and their anonymous sources; [3] Ensure that Part V of the Digital Economy Bill is amended, so that it does not criminalise appropriate disclosures by whistleblowers operating in the public interest

Journalists and news organisations should [4]: Review and strengthen policies on secure technology, source care and protection; [5] Review how journalists engage with sources that wish to remain anonymous; [6] Offer or seek training on working with confidential sources to make journalists and sources aware of the practicalities and limitations of source care and protection.

Researchers and NGOs should: [7] Examine the merits of extending public interest defences for whistleblowers; [8] Analyse and see what can be learnt from whistleblowing legislation in other territories; [9] Seek adequate definitions of journalism and journalists, and evaluate whether this can help the drafting of source protection laws; [10] Produce a public log of cases where sources protection is breached, and in what ways.

Writing in the report’s foreword, Katharine Viner, editor-in-chief of Guardian News and Media, said: ‘At a time when journalistic protections are more important than ever, the UK Parliament has just passed an act that brings in one of the most draconian surveillance regimes anywhere in the world, with the Investigatory Powers Act. It enables law enforcement and agencies to access journalists’ data without the journalist ever knowing.

‘As we continue to press for more protections from policymakers, we must also do everything we can to help ourselves, embracing a new age of technology with care. Alongside our sources, we must continue to uncover the truth.’

Ends

1. For further information please contact Maureen McTaggart, Media and Public Relations Officer, School of Advanced Study, University of London. maureen.mctaggart@sas.ac.uk / 020 7862 8653. Images available on request.

2. The Institute of Advanced Legal Studies (IALS) supports and leads legal research in its broadest sense, both nationally and internationally. Founded in 1947, it houses specialist research centres and innovative partnerships and is home to an active community of researchers, fellows, and postgraduate students. It promotes new research agenda in specialist and interdisciplinary areas of law with direct effect on policy and practice. It provides research training and online services, a meeting place for organisations and legal scholars from around the globe, one of the world’s great legal research libraries, and a busy programme of seminars and public events. www.ials.sas.ac.uk

3. The School of Advanced Study (SAS), University of London is the UK’s national centre for the promotion and support of research in the humanities. SAS and its member institutes offer unparalleled academic opportunities, facilities and stimulation across a wide range of subject areas for the benefit of the national and international scholarly community. In 2015-16, SAS: welcomed 786 research fellows and associates; held 2,007 research dissemination events; received 24.4 million visits to its digital research resources and platforms; and received 194,145 visits to its specialist libraries and collections. The School also leads the UK’s only nationwide festival of the humanities: Being Human. Find out more at www.sas.ac.uk or follow SAS on Twitter at @SASNews.

4. The University of London is a federal University and is one of the oldest, largest and most diverse universities in the UK. Established by Royal Charter in 1836, the University is recognised globally as a world leader in Higher Education. Its members are 18 self-governing member institutions of outstanding reputation, and nine research institutes. Learn more about the University of London at http://www.london.ac.uk