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HFHR: journalist cannot independently waive obligation to protect sources

The HFHR has presented an amicus curiae brief in a case concerning a violation of a journalist’s obligation to protect the identity of an informant. The brief highlights the fact that the main purpose of the reporter’s privilege, which includes the obligation to protect sources of information, is to ensure the safety of persons who feed the media with information on the condition of anonymity. This means, the brief follows, that journalists cannot waive this obligation whenever they so decide.

In 2010, M. provided a journalist with materials on the wrongdoings which were allegedly taking place at his workplace. As he approached the reporter, he did not disclose any of his personal data. The journalist knew only his phone number. The journalist decided to contact the spokesperson of the company in which M. was employed in order to verify the obtained information. Having learned about this, the informant stated that he would no longer be giving any information and that he does not consent to the publication of the previously provided materials. Shortly afterwards, the journalist found out that a letter signed by his name was sent to the board of the company. However, he did not write that letter. The letter included questions concerning the wrongdoings which were allegedly taking place at the company. The journalist felt deceived and decided to reveal the phone number of the informant. This lead to M. having been identified as a journalistic source and ultimately to the termination of his employment contract.

“Informants must be provided with adequate protection in order for the press to properly perform its role of the public controller. Otherwise they may be reluctant to provide journalists with confidential information while disclosures of such information quite frequently serve the public interest”, the brief reads.

HFHR also stated that all kinds of information that could result, even indirectly, in an informant being identified are subject to the reporter’s privilege. The opinion also noted that Polish law provides only for few situations in which a journalist is released from the obligation of secrecy: this may be done if the informant authorises the waiver and also in situations concerning particularly serious crimes.

In the brief, the HFHR also pointed out that “under the applicable press law a journalist is obliged to keep the identity of the informant in secrecy, if the latter requested his personal data to be kept confidential. The journalist is not at liberty to decide in matters concerning the protection of their source and this protection cannot depend on their personal attitude to a given case or the informant. Otherwise, the institution of the reporter’s privilege would not fulfil its guarantee role, which is built upon the assumption that it is the informant and not the journalist who is the rightholder.”

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