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Sanef welcomes court decision that journalists are not obliged to reveal their sources

The South African National Editors’ Forum is delighted with what has been described as a “ground-breaking (court) judgment for media freedom’’ that provides journalists with a substantial legal safeguard for the protection of their confidential sources of information. In the South Gauteng High Court Mr Justice Moroa Tsoka declared that if freedom of the press is fundamental to democracy, “it is essential that in carrying out this public duty for the public good, the identity of their sources should not be revealed’’.

Judge Tsoka said that “this essential and critical role of the media, which is more pronounced in our nascent democracy, founded on openness, where corruption has become cancerous, needs to be fostered rather than denuded.’’
Sanef believes this judgment which echoes a ruling by the Grand Chamber of the European Court of Human Rights on the protection of journalistic confidential sources in 2010 will enable investigative reporters to be more effective in uncovering corruption, abuse of power and malpractice in both the public and private sectors as they will now be able to protect their confidential sources of information with greater confidence.

The judgment related to a defamation action brought by facilities management company Bosasa against the Mail and Guardian and its investigative reporter Adrian Basson after they published an article in 2009 which described “the corrupt relationship between Bosasa and the department of correctional services’’ that resulted in the company winning a number of multimillion-rand tenders from the department.

After the Mail and Guardian had refused to supply the names of the informants it relied on in compiling the article, Bosasa went to court to demand that the names be revealed, claiming confidential sources could be used to promote hidden agendas, disseminate propaganda or disguise lazy reporting.
It is significant that Judge Tsoka rejected the arguments of Bosasa’s lawyer Jeremy Gauntlet that the media could not ask for “press exceptionalism” and claim absolute privilege to protect the identity of its sources.  Gauntlett added, “none of us have an absolute right to information nor do the respondents (M&G and Basson) have absolute right to immunity of disclosure of information they’ve chosen to rely upon.’’
The rejection of these views by the judge adds weight to his finding that journalists’ confidential sources must be protected. Judge Tsoka added that in this case the identity of the sources was irrelevant and that Bosasa should deal with the correctness of the claims in the article and not the sources’ identity.

It is essential that journalists protect the identity of sources – it is a requirement of the Press Code and if they did not do so investigative reporting would be seriously inhibited if not stifled. This judgment will remove the fears over this issue that have always dogged journalists who have before them the example of the many journalists who have been jailed for defending that principle.

Now, as media lawyer Dario Milo observes, “Judge Tsoka has ensured that journalists who in good faith and for good cause promise not to reveal the identity of their sources will receive the court’s assistance in keeping that promise.”

Sanef congratulates the Mail and Guardian for taking the financial risk of pursuing this fundamental principle in an expensive court action and commends the judge for setting a new standard of media freedom in South Africa.

Issued by the SA National Editors’ Forum (SANEF)