May 1, 2017

Digital age threats to press freedom

Landmark study urges protection of journalists' sources and whistleblowers

A global study of legal protections for journalists who rely on confidential sources has revealed the corrosive impacts of data retention, mass surveillance and ever-encroaching national security and anti-terrorism legislation on source protection and confidential communications.

Journalists often rely on whistleblowers and other confidential sources to gather and report information in the public interest, yet source protection laws are increasingly under threat and being actively eroded, challenging rights to freedom of expression and privacy.

‘Protecting Journalism Sources in the Digital Age’, is published today (1 May) and it will be officially launched by the United Nations Educational, Scientific and Cultural Organization (UNESCO) during World Press Freedom Day celebrations in Jakarta on 3 May.

The landmark study was led by Julie Posetti, Journalism Research Fellow at the University of Wollongong, and covers developments in 121 UNESCO Member States during the period of 2007 to 2015, representing a global benchmarking of journalistic source protection in the digital age.

“The study finds that unless journalistic communications are recognised, surveillance is made subject to checks and balances; data retention laws are limited; and accountability and transparency measures, applied to both states and corporations, are improved, confidence in the confidentiality of sources could be weakened,” Posetti said.

“The result could be that much public interest information, such as that about corruption and abuse, will remain hidden from public view.”

In many of the countries examined in the study, it was found that legal source protection frameworks are being actually or potentially:

• Overridden by national security and anti-terrorism legislation
• Undercut by surveillance – both mass and targeted
• Jeopardised by mandatory data retention policies and pressure applied to third party intermediaries - like ISPs, telcos, search engines, social media platforms - to release data that risks exposing sources
• Outdated when it comes to regulating the collection and use of digital data, such as whether information recorded without consent is admissible in a court case against either a journalist or a source; and whether digitally stored material gathered by journalistic actors is covered by existing source protection laws.
• Challenged by questions about entitlement to claim protection - as underscored by the questions: “Who is a journalist?” and “What is journalism"?

Drawing on dozens of in depth interviews with international editors, investigative journalists and media lawyers, and more than 150 international survey respondents, the report includes a case study on global defensive journalism practices, and an 11-point plan to guide legislators in protecting journalistic communications and sources against new convergent threats.

Posetti said that while the rapidly evolving digital environment presented great opportunities for journalists to investigate and report information in the public interest, it also posed particular challenges regarding the privacy and safety of journalistic sources.

“This study is being launched in the context of unprecedented digital era threats  to confidential journalistic communications – from security agencies intercepting reporters’ emails, to US customs officials seizing journalists’ phones and, just last week, Australian Federal Police admitting that they illegally accessed a journalist’s metadata,” Posetti said.

“It’s utterly chilling, and urgent reform is required. I genuinely hope that this study serves as an effective tool in the struggle to defend investigative journalism dependent on confidential sources, and the efforts of whistleblowers, in the interest of strengthening democracy.”

The challenges are not restricted to developing nations or parts of the world with known limitations on press freedom.

For example, the effects of mass and targeted surveillance, data retention laws and anti-terrorism legislation have impacted on journalist-source confidentiality in three quarters of countries in Europe and North America.

“The bottom line is that citizens need to be able to reveal major injustices and corruption without fear of reprisals and source protection frameworks are an essential component in this,” Posetti said.

“However, in the digital age, laws protecting journalists from being forced to reveal their sources are under significant threat of erosion, restriction and compromise.”

Posetti was on research secondment with the World Editors Forum (WEF) and the World Association of News Publishers (WAN-IFRA) in Paris during 2014-15 in which capacity she led and authored the global study for UNESCO.

Along with Posetti, four UOW Bachelor of Journalism students worked on the project as research assistants through internships with WEF/WAN-IFRA in Paris, and former UOW journalism academic Dr Marcus O'Donnell contributed as a researcher.

The full study is available for free download at unesco.org.

About the study

The findings are based on an examination of the legal source protection frameworks in each country, drawing on academic research, online repositories, reportage by news and human rights organisations, more than 130 survey respondents and qualitative interviews with nearly 50 international experts and practitioners globally.  

The study was commissioned as part of the research for an overarching global UNESCO Internet Study, mandated in 2013 by UNESCO’s General Conference of 195 Member States in Resolution 52.  

Resolution 52 specifically noted “that privacy is essential to protect journalistic sources, which enable a society to benefit from investigative journalism, to strengthen good governance and the rule of law, and that such privacy should not be subject to arbitrary or unlawful interference”.

The research is published as the ninth edition of UNESCO’s publications series on Internet Freedom that was begun in 2009 and that has strived to explore the changing legal and policy issues of Internet.