That was where the issue was as of writing this piece because there had been no further action by the court. There was an analysis in the Himalayan Times on Feb 13 that said the court had ‘neither issued logical answers through the concerned media not clarified the case…’ Let us not get into what is logical and what is not.
Irrespective of what happens next, since protecting sources is an issue that could come up again, and because the code of conduct is not law but an industry standard, it may be opportune to discuss whether journalists ‘should’ reveal their sources or should not – and face the consequences.
Some lawyers I spoke to said that Nepal has no law that would require a journalist to disclose sources, which is reassuring. This is because obtaining and communicating information – often provided by sources that may seek anonymity for various reasons – is the foundation on which our profession stands. Therefore, any restriction on journalists in obtaining information – and forcing them to disclose the source is one – could endanger not only the profession but, by extension, also free expression and the public’s right to know.
Take for example information that has been in circulation after Jhalanath Khanal was elected prime minister. We do not know who passed on the seven-point agreement between Prime Minister Khanal and Pushpa Kamal Dahal, the Maoist party chairman, to the media. But this information in the public interest, given that it has set off a debate on the emerging Left-Right political alliances, has also intensified the political battles within the prime minister’s party and even stalled government formation.
Now imagine a situation that a case of defamation and false reporting was initiated on this issue, and the court were to ask journalists to disclose the source of information. Such a situation can make such stories history because those who may have leaked the information would never speak to the media again as their identities would be exposed. In effect to this the public would remain uninformed irrespective of how such information could affect them.
But Nepal also has no law guaranteeing journalists the right to protect sources, if called to testify, and therefore, the imagined situation is also not implausible.
Generally, journalists are said to be as good as the sources they are able to cultivate because good journalism is about getting and reporting information that ‘someone, somewhere wants to hide; everything else is advertising’. The latter would apply to all public speeches, all press conferences and all statements that journalists come across and publish/broadcast. Or, almost every story in the media today is essentially what someone wants the public to know.
Investigative reports that are often based on information obtained from sources buried deep in obscurity are rare and often these are the sort of stories that can expose wrongdoings and actually trigger changes. These stories would have information someone wants to hide and can therefore, come to the public domain only when sources feel confident that they can speak and be assured that their identities will be protected.
Investigative reports that are often based on information obtained from sources buried deep in obscurity are rare and often these are the sort of stories that can expose wrongdoings and actually trigger changes. These stories would have information someone wants to hide and can therefore, come to the public domain only when sources feel confident that they can speak and be assured that their identities will be protected.
Take another example, a story that was based on a tape-recorded conversation between Supreme Court officials bargaining over bribe amount that appeared in Himal Khabarpatrika some time ago. (Two editors were charged with contempt, which the court has recently overruled.) This is a type of story where courts could try to get reporters to disclose sources. It is also of the kind where, if the reporters were to comply, they could seriously jeopardize the ability of journalists to obtain information from people wanting to keep it away.
There are examples elsewhere where the issue of source protection has reached the courts. In a 1972 ruling (Branzburg v Hayes), the United States Supreme Court ruled in a 5-4 decision that the First Amendment gave no privilege to journalists to refuse the names of confidential sources or other information when called to testify before a grand jury. (The reporter in this case was called to testify in a drug-related case.) One dissenting judge advocated absolute privilege and three others, qualified privilege. It was the only ruling of the US high court on the subject until 2002 but many lower courts have allowed limited constitutional protection to journalists. (Pember D R, 2002)
In Europe, there are efforts to make laws to enable journalists to protect their sources. A recommendation adopted by the Council of Europe Committee of Ministers in 2000, requires domestic law and practice in member states to ‘provide for explicit and clear protection of the right of journalists not to disclose information in accordance with the Convention for the Protection of Human Rights and Fundamental Freedoms.’ There are exceptions, of course, and these include the public interest and if ‘circumstances are of a sufficiently vital and serious nature’.
I could not find a precedent on source protection in Nepal and therefore the Supreme Court letter to Sagarmatha Television has been brought up for discussion. The television station has written back saying that all sources that ‘could be disclosed’ were named in the disputed program itself and that it was unable to make further disclosures. And, assuming that the court has decided to rest its case, one can say that was the right thing to do as it can go a long way toward protecting free speech and the right of the public to know.
That said if the report in question was libellous or defamatory, the individuals who felt they have been harmed should rightly seek legal recourse. Nepali law does provide for compensating those who have been wronged (clause 12, Defamation Act 2016) and its exercise can – albeit indirectly – contribute toward enhancing the standards of journalism.
patrapatrika@gmail.com
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