The White House spying scandal has now become a hot political potato calling into question the commitment of major US state institutions to the principles of the First amendment. Similar intrusions have become almost routine within many old European democracies.
In the UK, more and more journalists, in particular photographers are now frequently summoned by the courts to respond to orders to hand over footage of public disorder events to the police. Jason Parkinson, a video journalist, had on several occasions been forced to fight production orders with the support of his union, the NUJ. In some cases, like his shooting of the Dale Farm eviction, his union led an eight-month battle in partnership with the BBC, ITN, Sky and Hardcash Productions that ended in victory at the Royal Courts of Justice. But the production orders continue to fall hard and fast.
A few years ago, five of Britain’s largest news organisations – The Guardian, the Times, Financial Times, the Independent and Reuters – faced sequestration of their assets and potentially crippling fines for refusing to help track down the source of an embarrassing leak, involving Interbrew, a group of South African Breweries. They won their case.
Journalists in Europe have also been facing similar threats in increasing numbers of cases in many countries, many of which ended up at the European Court of Human Rights. Last June, the court ruled on a case brought by journalists in France, following searches of the newsrooms of the French newspapers, L’Equipe and Le Point, and the confiscations of material. Given that the French judiciary system failed to recognise a violation of article 10 of the European Convention on Human Rights, the European Court was asked. It not only reaffirmed its jurisprudence in this regard but also extended it, stressing that “the rights of journalists to protect their sources shall not be considered as a privilege that can be granted or withdrawn on the basis of the legality or illegality of these sources, but shall be considered as an inalienable right to information commanding the highest considerable.”
The ECHR affirmed its authority on this matter by making a landmark ruling as far back as the 1990s in the case of a young British journalist, Bill Goodwin working for The Engineer magazine, who was hauled in front of the courts and asked to reveal his sources who passed information on the financial performance of a computer software company, Tetra. Goodwin battled in the English courts and it is only when he took his case to the ECHR that he won seven years later.
All these cases have put the ECHR in the driving seat as the only body that can enforce Article 10 of the European Convention on Human Rights, which guarantees freedom of expression and the protection of journalistic sources.
As if these attacks were not enough, the British coalition government is now preparing legislation in its Communications Data Bill posing even a bigger threat to journalists and to the privacy of citizens’ electronic data. The bill would give power to the government to order internet companies such Facebook, BT Virgin Media and Sky to collect and store the communications data relating to all of the traffic they deal with. Worse still, its law enforcement agencies may be able to trawl that data and cross reference it with other data sources through a communications data search engine, revealing social connections and confidential communication between journalists and their sources.
Journalists, academics and cyber-security experts are up in arms about it and are gathering the widest coalition, supported by the IFJ, to force the UK government to drop the bill.