Protection of sources: safeguarding journalistic integrity

Why confidentiality matters

One of the pillars of democracy is a free press. We discussed the importance of access to information recently. In an open society, we take access to information for granted, and journalists tend to be respected. A principle of ethical journalism is confidentiality, and the protection of confidential sources is a widely respected moral obligation. Across the globe, journalists uphold the responsibility to preserve their sources’ identities, recognising this as fundamental to maintaining trust. This principle not only maintains the profession’s integrity, it enables the free flow of information to the public. Knowing their confidentiality will be respected, individuals may be willing to come forward with sensitive information, contributing to the press’s vital role in exposing matters of public interest.

However, this commitment can be challenged when the law requires journalists to disclose their sources in legal proceedings, such as civil, criminal, or administrative cases. In South Africa, legal protection for journalistic sources is not absolute, but recent case law has acknowledged and reinforced certain protections under specific conditions.

Legal protections and case law

South African courts have examined the legal boundaries of source protection, particularly in cases where press freedom conflicts with other interests. Key cases include:

Bosasa v. Basson (2009): In this case, the court supported journalists’ rights to protect sources under the discovery procedure, emphasising the importance of press freedom for democracy. The court concluded that a journalist’s source should be protected, especially in cases exposing corruption. The ruling underscored that confidential sources provide valuable public interest information that might otherwise remain hidden.

SABC v. Avusa (2010): This case affirmed that journalists’ protection of sources extends to both verbal and documented information provided in confidence. The court recognised that journalists’ ability to safeguard sources is fundamental to press freedom and dismissed the SABC’s application to compel the return of a document that could reveal the source’s identity.

Through these cases, the court established several guiding principles:

• Journalists must have an agreement to maintain source confidentiality
• The source’s actions must serve the public interest
• Source protection is not a blanket privilege; each case must be evaluated individually
• Courts may override confidentiality in rare cases, such as those involving serious crimes

The Press Code and ethical obligations

The South African Press Code requires the media to protect confidential sources. However, the press is encouraged to use anonymous sources sparingly and to corroborate information whenever possible. The Press Code allows the use of anonymous sources when it is in the public interest and recommends views from involved parties be sought unless this may intimidate sources.

Section 205 subpoena

Under Section 205 of the Criminal Procedure Act, authorities can subpoena individuals to provide evidence in criminal investigations. This provision has significant implications for journalists, as it may compel them to reveal confidential sources. However, the courts have allowed journalists to claim a “just excuse” to resist subpoenas, as seen in S v. Cornelissen, where the court found that compelling journalists to testify could harm their reputation and ability to gather news. Each case is evaluated on its specific circumstances, balancing public interest with the journalist’s role in society.

Commissions of enquiry

Journalists may be required to testify in commissions of enquiry. In Munusamy v. Hefer NO and Others, the High Court ruled that journalists can be summoned without being last-resort witnesses, even if confidentiality of sources is involved. This ruling highlighted the responsibility of journalists to provide information that aligns with the commission’s objectives, provided it does not compromise the identity of sources.

Memorandum of Understanding (1999)

To address conflicts over subpoenas, a Memorandum of Understanding was established in 1999 between the South African National Editors’ Forum (SANEF), the National Director of Public Prosecutions (NDPP), and the Ministries of Justice and Safety and Security. The MoU provides that the NDPP should consult the media before issuing subpoenas to journalists, aiming to mediate disputes and weigh press freedom against legal requirements for law enforcement. This agreement strengthens cooperation between media and law enforcement, allowing for balanced decisions that respect journalistic integrity and public interest.

Off the record

Many people think “off the record” means nothing they say can or will be used. This is not quite correct. The information can be used, but not attributed. More specifically, it should not be cited but can inform further investigation by the journalist. There are several categories of “speaking terms” (agreements concerning attribution) that cover information conveyed in conversations with journalists. The following conventions are generally accepted:

• “On the record”: all that is said can be quoted and attributed
• “Unattributable”: what is said can be reported but not attributed
• “Off the record”: the information is provided to inform a decision or provide a confidential explanation, not for publication

A matter of balance

The protection of journalistic sources remains a complex issue requiring a careful balance of legal, ethical, and public interests. Court rulings, press codes, and collaborative agreements have collectively contributed to a framework that safeguards journalists’ sources while acknowledging the legal responsibilities they face. This balance is essential to maintaining the media’s role in a democratic society and preserving the trust that allows journalists to uncover and report on matters of public significance.

Seek professional legal advice

Whistleblowers and other sources of sensitive or critical information must feel able to speak out in the public interest. If you have experienced any intimidation regarding speaking up or keeping quiet, either as a journalist or a member of the public, contact Simon Dippenaar and Associates Inc. We will ensure your right to confidentiality is upheld. Contact Simon today on 086 099 5146 or email sdippenaar@sdlaw.co.za.

Further reading:

• Access to information
• Understanding the right to privacy
• Stop corruption – whistleblowing without worry
• Bribery and corruption in South Africa

SD Law

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