A research report just released by the United Nations Educational, Scientific, Cultural and Organisation (UNESCO) has recommended an 11-point assessment tool for measuring the effectiveness of legal frameworks that support protection of journalistic sources in the digital age.
UNESCO refers to this as the framework of Internet Universality, and the Internet governance principles of Human Rights, Openness, Accessibility, and Multistakeholder Participation. It was developed as a new approach to Internet and freedom of expression issues regarding safety, privacy, transparency, encryption, hate speech, radicalization and source protection.
The report titled Protecting Journalism Sources in the Digital Age recommends among other things, that a model legal source protection framework should recognise the value to the public interest of source confidentiality protection; that source protection should extend to all acts of journalism, and across all platforms, services and mediums; that source protection does not entail registration or licensing of practitioners of journalism; and the potential detrimental impact on public interest journalism, and on society, of source-related information being caught up in bulk data recording, tracking, storage and collection.
The study which covers 121 UNESCO Member States represents a global benchmarking of journalistic source protection in the Digital Age focuses on developments between 2007 and 2015. The finding shows that the legal frameworks that support protection of journalistic sources, at international, regional and country levels, are under significant strain as at the end of 2015.
It shows that that these legal frameworks are increasingly at risk of erosion, restriction and compromise – a development that is seen to represent a direct challenge to the established universal human rights of freedom of expression and privacy, and one that especially may constitute a threat to the sustainability of investigative journalism.
The study published as Keystones to foster inclusive Knowledge Societies, covers access to information and knowledge, freedom of expression, privacy and the ethical dimensions of the information society.
Findings from the study shows that of the 121 Member States studied, developments that impact on source protection in practice, or in potential, have occurred in 84 (69%) countries since 2007 and that these changes were not evenly dispersed around the world.
It shows that the region reflecting the most notable developments was the Arab States, where 86% of countries examined demonstrated shifts with Latin America and the Caribbean following closely behind. Developments in legal protections for journalists’ sources were recorded in 85% of the States studied. The findings show that in Asia and the Pacific, 75% of States exhibited notable changes, while 66% of European and North American States also demonstrated developments since 2007.
In the African countries examined, changes were identified in 56% of them. Significant changes in the offline realm of source protection were found to be more prominent in Africa and the Arab States, but not limited to these regions. Digital developments were found to be most prevalent in Latin America, Asia, Europe and North America.
The report also recommends that a model legal source protection framework should affirm that State and corporate actors (including third party intermediaries) who capture journalistic digital data must treat it confidentially; shield acts of journalism from targeted surveillance, data retention and handover of material connected to confidential sources; and define exceptions to all the above very narrowly, so as to preserve the principle of source protection as the effective norm and standard.
The last three tools recommended for assessing legal frameworks for journalists’ sources in the digital age include that model legislation should define a transparent and independent judicial process with appeal potential for authorised exceptions, and ensure that law-enforcement agents and judicial actors are educated about the principles involved; criminalise arbitrary, unauthorised and willful violations of confidentiality of sources by third party actors; and recognise that source protection laws can be strengthened by complementary whistleblower legislation.
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 which called for a comprehensive and consultative study of four dimensions of the Internet as relevant to its remit.
UNESCO’s Resolution 52 which mandates the research specifically notes “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” (UNESCO 2013).
It concludes that law-makers, journalists, editors and publishers among other stakeholders can play vital roles in promoting public understanding of these issues, and in advocating for change.