Protecting Journalism Sources in the Digital Age
Journalism and journalists catch a lot grief, and at times, deservedly so at times. Some of the most important issues facing news media, and to an extent, modern society is accuracy and credibility of information.
Digital citizenship is not just an individual concern, it is also an institutional concern – for journalists, schools and universities and for education and educators.
The very nature of accurate and credible information affects all aspects of modern society besides media and education, it includes the functions of our government, economy, health and well-being among countless components of modern life.
Oftentimes, the digital frontier seems like the Wild West of anything goes, but it is not a benign and untamed world – it is highly organized and monitored and content and access reign as king and queen. To narrow, the scope of discussion for the purpose of this reflection, the focus will try to be on that of journalism and the concepts of copyright, fair use and the gateway those concepts affect, control and support.
The access and support of information for journalistic use are under unprecedented pressure and influence from a variety of forces. Log on the internet, turn on cable TV and not only are news organizations and media outlets at war with each other about the veracity of information, but we have leading political and social figures adding to the fray whether or not something is “fake news.”
Facts cannot be copyrighted, although how those facts are expressed can be. Facts are public domain. What temperature it is outside right now cannot be copyrighted, however if someone created a play or song to describe it – that work could be (Bailey, 2010).
A challenge that has always faced journalists is the protection of source material and sources. Technology has provided tools for easier access, but also devices for greater control and restriction. These restrictions compromise the freedom of expression and privacy and some argue, the sustainability of journalism and freedom of the press.
Some colleagues and profession journalists and I have been discussing a recent publication of an eight-year study by the United Nations Educational, Scientific and Cultural Organization that surveyed 121 nations and challenges affecting press freedom (Posetti).
The study found significant issues facing the protection of journalism sources and these issues are not something found just in the Undeveloped World, but in G20 nations, including the United States at local, regional and national levels.
The erosion of these protections include (Posetti):
- National security and anti-terrorism legislation
- Undercut by surveillance and hacking – both mass and targeted
- Mandatory data retention policies and pressure applied by third party intermediaries – like ISPs, telcoms, search engines, social media platforms – to release data which risks exposing sources
- Outdated or absent laws and legislation when it comes to regulating the collection and use of digital data, such as whether information recorded without consent is admissible in a court case against either a journalist or a source; and whether digitally stored material gathered by journalistic actors is covered by existing source protection laws.
- Challenged by questions about entitlement to claim protection – as underscored by the questions: “Who is a journalist?” and “What is journalism?”
UNESCO found that 84 (69 percent) of the countries surveyed had impacts on source protection occur mostly because of digital disruption and legal overreach measures produced in form of legislation or laws for national security or crime initiatives (Posetti).
The study stated that unless journalistic concerns are acknowledged, surveillance must be subject to checks and balances, data retention laws updated and improved; accountability and transparency will be weakened and the result could be that much information of public interest about corruption and abuse will be hidden from public scrutiny.
The other problems that arise from these dilutions are premature exposure of investigational reporting and that may, in turn, encourage cover-ups, intimidation or the destruction of information.
To address these concerns, UNESCO has proposed the following 11 assessment metrics (UNESCO, p. 4):
1.Recognise the value to the public interest of source protection, with its legal foundation in the right to freedom of expression (including press freedom), and to privacy. These protections should also be embedded within a country’s constitution and/or national law,
- Recognize that source protection should extend to all acts of journalism and across all platforms, services and mediums (of data storage and publication), and that it includes digital data and meta-data,
- Recognize that source protection does not entail registration or licensing of practitioners of journalism,
- Recognize 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,
- Affirm that State and corporate actors (including third party intermediaries), who capture journalistic digital data must treat it confidentially (acknowledging also the desirability of the storage and use of such data being consistent with the general right to privacy),
- Shield acts of journalism from targeted surveillance, data retention and handover of material connected to confidential sources,
- Define exceptions to all the above very narrowly, so as to preserve the principle of source protection as the effective norm and standard,
- Define exceptions as needing to conform to a provision of “necessity” and “proportionality” — in other words, when no alternative to disclosure is possible, when there is greater public interest in disclosure than in protection, and when the terms and extent of disclosure still preserve confidentiality as much as possible,
- Define a transparent and independent judicial process with appeal potential for authorized exceptions, and ensure that law-enforcement agents and judicial actors are educated about the principles involved,
- Criminalize arbitrary, unauthorized and willful violations of confidentiality of sources by third party actors,
- Recognize that source protection laws can be strengthened by complementary whistleblower legislation.
References
Bailey, J. (2010). 5 things that can’t be copyrighted. https://www.plagiarismtoday.com/2010/01/08/5-things-that-cant-be-copyrighted/. Plagiarism Today. Retrieved Dec. 8, 2018.
Posetti, J. (2017). Presented World Press Freedom Day 2017, Jakarta, Indonesia. May 1-4, 2017.
World Press Freedom Day 2017, Jakarta, Indonesia. May 1-4, 2017. https://en.unesco.org/wpfd
