A recent judgment handed down by the European Court of Human Rights in Strasbourg affirms journalists' right to protect their sources, writes Raymond Louw in Business Day.  The SA constitution will require the magistrate dealing with the subpoena against e.tv journalists to take that ruling into account when dealing with their matter.

Raymond Louw writes in Business Day:

AS AN infuriated government continues to fulminate against e.tv , which screened an interview with two unidentified criminals who threatened to rob visitors to SA during the Soccer World Cup later this year, a four-line item in the constitution is likely to assume prime importance in the court proceedings instituted against the two journalists involved.

Since the screening of the interview on January 15, e.tv news editor Ben Said and reporter Mpho Lakaje have been subpoenaed to appear in court to disclose the identity of the two criminals and supply related TV footage of the interview that was not screened. They have refused.

The subpoena has been issued under section 205 of the Criminal Procedure Act, a legal instrument that is in frequent use in the fight against crime to obtain evidence from such witnesses as bank officials, who have sworn to maintain secrecy about customers’ accounts. When a bank account is suspected by police to be vital to uncovering information about the proceeds of crime, this act is brought into play to impose the legal obligation on an official to override the secrecy code.

During the apartheid era, this law was abused time and time again by the National Party government and its police to drag journalists before court to disclose the identity of confidential sources of stories that the Nationalists found embarrassing, or who they thought would lead them to anti- apartheid groups.

Journalists went to jail rather than disclose their sources, though some did disclose the information after the source had left the country.

The constitutional item that is certain to be raised in court as the prosecution takes action against Said and Lakaje is section 233, which, under the heading Application of International Law, says: “When interpreting any legislation, every court must prefer any reasonable interpretation of the legislation that is consistent with international law over any alternative interpretation that is inconsistent with international law.”

That means that in laying down the law in a South African court, a judicial official must not only take cognisance of what international decisions have been taken on the matter but “must prefer” a reasonable interpretation of the international court decision.

Exactly a month before e.tv flighted the controversial interview, the European Court of Human Rights in Strasbourg handed down a judgment that recognised the right in clear and unmistakable terms of journalists to protect their anonymous sources.

Here is a clear case under international law that endorses the right of journalists to protect their confidential sources. The international standing of the European Court of Human Rights is beyond reproach.

The court deals with human rights violations by the 47 member states of the Council of Europe. Its rulings cannot be enforced, but formally a Commission of Ministers monitors how the rulings are complied with and the ultimate sanction for non- compliance is expulsion from the council.

The case involved four major British dailies — the Financial Times, the Independent, the Guardian and the Times — and the Reuters news agency and was started in 2001 by the Belgian brewing firm Interbrew.

Ironically, it related to a South African company, South African Breweries (SAB — now SABMiller ).

Interbrew demanded that the papers hand over to it documents from an unidentified source that the papers had used to run stories about Interbrew’s activities.

On November 27 2001, a Financial Times journalist received a copy of the leaked document from an anonymous source concerning Interbrew’s possible takeover move on SAB and published an article about the bid on the newspaper’s website that evening.

The Times, the Guardian, the Independent and Reuters all published stories referring to the same document in the following days, prompting a sudden rise in the number of SAB shares traded — from 2- million to 44-million in two days.

Interbrew, now part of the Anheuser- Busch InBev brewing group, claimed that the details had been doctored and leaked maliciously to lower its share price.

It brought proceedings in the High Court in London seeking the identity of the source of the leak.

In January 2002, the High Court ruled in favour of Interbrew and ordered the documents to be handed over, judging the protection of the source to be less important than the company’s right to seek justice against the source.

The five news groups appealed to the Court of Appeal but failed and an approach to the House of Lords resulted in a refusal for further leave to appeal.

In July 2002, the news organisations refused to comply with the High Court order, arguing that they had an ethical obligation to protect their sources and that the order violated their right to freedom of expression under the European Convention on Human Rights.

Interbrew then took the remarkable step of applying to court to seize the Guardian’s assets in order to force it to hand over details of the source.

It failed and, at the time, editor Alan Rusbridger said: “We are facing an event unprecedented in British newspaper history. The sequestration of the Guardian’s assets raises fundamental issues about the operation of a free press in this country, which will send shock waves through the world’s press.”

The papers took the issue to the European Court of Human Rights, where the judges ruled unanimously that the order to hand over the documents amounted to a violation of the media companies’ right to freedom of expression, under article 10 of the European Convention on Human Rights.

In its judgment, the court stressed the “chilling effect” that occurs when journalists are seen to help in the identification of anonymous sources.

It also ruled that Interbrew’s “interests in eliminating … the threat of damage through future dissemination of confidential information and in obtaining damages for past breaches of confidence were, even if considered cumulatively, insufficient to outweigh the public interest in the protection of journalists’ sources”.

The court also ordered the British government to pay the news organisations’ legal costs of à 160000.

Michael Smyth, of Britain’s Clifford Chance, the law firm that acted for the five companies, said: “This confirms that the protection (of journalists’ sources) should only be removed on public interest grounds in the face of very clear evidence.”

The case is regarded in Britain as one of the most important rulings on press freedom since the “freedom of expression” argument was used by Bill Goodwin, a freelance journalist, in winning a landmark ruling in Strasbourg in 1996. In that case, it was ruled that English judges had punished Goodwin illegally for refusing to reveal a source.

The magistrate dealing with Said and Lakaje will have to take these two judgments by the Strasbourg judges into account and, if he or she does not, it will open strong grounds for appeal by the journalists.

– Louw is editor and publisher of the weekly current affairs newsletter, Southern Africa Report, and deputy chairman of the South African chapter of the Media Institute of Southern Africa. This piece first appeared in Business Day on 26 January 2010.