Unilateral revocation of reporter’s privilege illegal, rules court

A Newsweek reporter’s disclosure of the identity of a source had been an abuse of the reporter’s privilege and an unlawful violation of the source’s personal interests: the right to anonymity and secrecy of correspondence, the Court of Appeal in Warsaw ruled in a judgment made on 1 February 2018.

In the verbal justification of the judgment, the Court emphasised that the reporter’s privilege was primarily designed as a measure protecting the relationship between a journalist and their sources of information, which must be based on trust as such a relationship is an important element of the media awareness of the current situation. Given the above, journalists are not only entitled, but also obliged to protect the identity of their informants.

Source’s data disclosed to their employer

In 2010, M. provided a journalist with materials on the wrongdoings which were allegedly taking place at his work establishment. Apart from his phone number, the informant did not disclose any of his personal data to the reporter. The journalist decided to contact the spokesperson of the company in which M. was employed, in order to verify the obtained information. As soon as he learned about this, M. stopped feeding the reporter with information refused to consent to the publication of the previously provided materials.

Shortly afterwards, the journalist found out that a letter with questions about the alleged irregularities had been sent to the board of the company. He did not write the letter but the document was signed with his name. The journalist felt deceived and decided to reveal to the employer the phone number reportedly used by the informant to make contact. He also forwarded an email received from M. Based on this obvious lead, M.’s identity has been exposed, which led to his dismissal from work.

Regional Court: no explicit stipulation of anonymity

The first instance court has dismissed the informant’s claims, invoking the claimant’s failure to explicitly require the reporter to maintain his anonymity as a source. The court also held that M. had acted in bad faith and referred to the journalist’s allegations of the informant having misrepresented him as the author of the letter. This, according to the court, entitled the journalist to “disclose any information related to the case in order to explain the situation.”

Court of Appeal: clear abuse of reporter’s privilege

The Court of Appeal rejected the reasoning of the regional court and ruled that the journalist’s disclosure of M.’s phone number and the email to the employer had been a clear abuse of the reporter’s privilege.

Since the informant had chosen not to reveal his name, argued the second instance court, it is difficult to contend that he had not required remaining anonymous since the intent to stipulate one’s anonymity can be expressed implicitly.

The Court of Appeal also concluded that the fact that somebody posed as the journalist in the letter to M.’s employer was no justification for a breach of the reporter’s privilege.

HFHR’s amicus curiae opinion

The Helsinki Foundation has been monitoring the case since 2013. Three years later, we submitted our amicus curiae opinion to the second instance court. The opinion argued that journalists may not unilaterally decide not to be bound by the reporter’s privilege, even if information received from a source does not appear in a publication. Without ensuring appropriate protection for informants, the press is unable to properly perform the function of a public watchdog.