In order to protect the confidentiality of journalists’ sources it is arguable that the concept of national security ought to be accorded a full legal status. This question has been reignited by the debate concerning EU regulation on the future measure on press freedom which pits those who want journalists to have absolute ‘freedom to investigate’ against those who believe that this freedom cannot be absolute or, in any case, cannot be exercised to the point of endangering national security by Andrea Monti – Initially published in English by INFORRM and in Italian by La Repubblica – Italian Tech.
At the heart of the clash between the two factions is a narrow, but crucial, issue: the exception contained in Article 4.2.(c) of the proposed regulation, which makes it illegal to use spyware —a piece of software that is surreptitiously installed in electronic devices to record everything that is done— unless it is justified on a case-by-case basis for reasons of national security. So, to be clear, the EU’s media freedom regulation —at least so far— does not endow journalists with an absolute right to secrecy, therefore, even if approved in its current form, it would not prevent prosecutors and intelligence agencies from using other powers and methods to track down a journalistic source if —as the provision verbatim says— the act is ‘justified by an overriding requirement in the public interest’.
It could also be argued that even if Article 4(1)(c) states that Member States may not ‘intercept, subject to surveillance or search and seizure, or inspect media service providers or, if applicable, their family members, their employees or their family members, or their corporate and private premises, on the ground that they refuse to disclose information on their sources’, if a prosecutor or law enforcement agency does not ask the journalist to reveal his or her source, they can monitor him or her without breaking the (forthcoming) EU regulation.
It will be interesting to see whether, in one of the future iterations of this Regulation, the prohibition on surveillance will be extended to cases other than the specific issue of source’s identity protection as the debate has escalated to the level of demanding a legal shield protecting journalists’ secrecy from any form of State’s scrutiny in the name of their role as watchdogs of power.
Be that as it may, in general, all Western countries protect the right to confidentiality of journalistic sources. However, this right is often self-proclaimed in codes of conduct or statements of professional ethics, which do not in themselves prevent the state from violating it in judicial investigations and trials or in intelligence and counter-terrorism operations. The question is therefore not ‘if’ journalistic secrecy can be breached, but ‘when’ and with what restrictions (if any). This point is particularly relevant in those countries where law enforcement agencies have more leeway due to a lack of formal provisions regulating the investigation of journalists’ sources or a lack of clear case law. The UK is a paradigmatic case, as demonstrated by a recently published report from the National Union of Journalists that outlines the struggle between the police attempt to cut through the veil of source anonymity and the ex post judicial review triggered by journalists taking the matter in court.
As far as the EU is concerned, member states share a (formal) respect for press freedom, but since the devil is in the detail, it is not so easy to uphold the principles when it comes to practical matters. So even in countries (such as Italy) where press freedom is constitutionally protected, journalists find themselves investigated, wiretapped, and subject to search and seizure orders, sometimes in the name of a ‘broad’ reading of the law. Until this instrumental reading of the letter of the law happens in a criminal investigation, judicial oversight —whether preventive or ex post— guarantees a case-by-case assessment of the admissibility of the act. But when national security comes into play, the legal assessment of the balance between freedom of the press and the powers of the state becomes more difficult because there is no clear definition of what national security is in legal terms, which is the only language that can —or should— be spoken in court. In fact, national security is a political rather than a legal category, and international relations scholars do not always agree on a common definition of the concept, making it difficult to make a decision based on the rule of law.
The legal status of journalists in Italy
To understand the complexity of the matter, it might be helpful to look at the Italian experience. Despite its parochial peculiarities, the national regulation of journalists’ professional secrecy —which implies some sort of right to sources’ confidentiality— elucidates both a (real) problem and a (possible) solution.
Before discussing the specifics of journalists’ professional secret, it is necessary to briefly review how the job is regulated in Italy.
A remnant of Fascist rule, the so-called ‘liberal professions’ —lawyers, doctors, architects, engineers and journalists— are governed by national bodies called ‘ordini professionali‘. Although autonomous —for instance, in all things concerning pension contribution and professional misconduct— the ordini are the only regulatory body recognised by the State.
The Ordine dei giornalisti has two types of members: professional journalists and ‘pubblicisti‘. The former gain the status through an apprenticeship and a final examination. The latter have to write a certain number of (paid) articles to earn the title.
Both professional journalists and pubblicisti can be editors-in-chief of a magazine or employed by newspapers, TV and radio stations. However, only professional journalists — and this is the key issue for the topic under discussion— are entitled to professional secrecy. So it goes without saying that ‘bloggers’, ‘vloggers’, ‘content creators’ and other online protagonists are not bound by the journalist’s code of conduct, nor can they claim to be ‘real journalists’ entitled to the protection of their sources.
As a final point, it should be noted that for the sake of clarity, the word ‘journalist’ will henceforth be used as a shorthand for ‘professional journalist’, thus excluding pubblicisti.
The legal limits of journalists’ right to professional secret
The issue of the limits of journalists’ professional secrecy has already been partly addressed in the context of criminal proceedings. In short, according to article 200 of the Code of Criminal Procedure, a journalist has the right to professional secrecy, unless a judge believes that the facts reported can only be ascertained by directly questioning the witness. In this case, the journalist must reveal the source.
Moreover, contrary to the attorney-client privilege which on paper is designed to prevent a prosecutor from eavesdropping on conversations between a defendant and his defence lawyer, journalists do not enjoy a similar protection, meaning that —if necessary and under the supervision of the court— they can be subjected to surveillance and wiretapping.
This is all the more true if one considers that in Italy even the attorney-client privilege can be de facto overridden. Article 103 of the Code of Criminal Procedure prohibits this practice, but the same article states that if this prohibition is violated, the only consequence is that the intercepted conversations cannot be used in the trial. This is a rather hypocritical way to regulate the matter because in a criminal investigation it is not only what can be formally documented that counts, but also what can actually be known. In other words, if a prosecutor has access to the defence strategy from the illegal interception of a communication between lawyer and client, he will be able to manage the investigation much more efficiently, even though he cannot put the content of the interception ‘on the record’. The law is respected in form, but not in substance.
Coming back to the question of journalists’ right to protect their sources, if even the professional secrecy granted to lawyers is not an obstacle to the practice of State-manned wiretapping, it is difficult to see how press freedom can be better protected than the right of defence, which is at the heart of the attorney-client privilege.
Judicial oversight over national security claims as a possible way out
In various domains, such as electronic surveillance and biometric facial recognition, the notion of absolutely prohibiting the exercise of the State’s surveillance powers over journalists seems impractical. Although disturbing, it is unlikely that any Western democracy would go so far to protect media freedom in a manner that would endanger genuine national security, and historical evidence has shown that the infringement of fundamental rights often occurs under the pretext of the ‘greater good’ regardless of the existence of some sort of right to confidentiality of the sources.
By contrast, the approach of case-by-case judicial scrutiny might prove more effective. Deferring to the court the duty to supervise the surveillance of journalists when national security is involved might not be a perfect solution, but it stands as the most effective method currently available. This approach delegates the responsibility of evaluating the necessity and appropriateness of breaching communication confidentiality to an independent and neutral third party —a court— thereby ensuring that such far-reaching powers are matched with the appropriate level of responsibility.
What the proposed EU media freedom regulation fails to consider
All this brings us, finally, to the discussion of ‘national security’ role in the European debate in the proposed Media Freedom Regulation.
Firstly, it is essential to acknowledge that the European Union, as per Article 4 of the EU Treaty, should not intervene in matters of national security, as these are reserved for Member States. Attempting to legislate on this area at a Community level, in defiance of the Treaty’s explicit prohibition, could result in a hollow victory. Such an overreach could lead to prolonged legal disputes, potentially reaching the Constitutional Court and destabilising the established framework of EU legislative powers.
Secondly, whether it be Brussels or Rome which legislates on the matter is of secondary importance compared with the core challenge of setting up to what extent, and within which boundaries, national security requirements should fall under judicial oversight. Without a clear legal definition of ‘national security’, it would be difficult to impose such judicial oversight, as the courts would have too much power to define —and thus limit— the Cabinet’s obligation to ensure state security.
The establishment of a clear legal definition of national security could significantly curb its misuse. As Alan Dershowitz pointed out in The Best Defence (1989), the term ‘national security’ is often exploited as a convenient shield for political gains or to mask institutional embarrassments. Therefore, providing a clear legal definition would also prevent the lax application of this concept, which has been an issue in recent times.
In Italy, the recent reform of cyber retaliation and undercover online operations in criminal investigations was an attempt to address the matter, albeit in a fragmented and highly problematic manner. It is not possible to enter into the details of these two pieces of legislation, but it suffices to say that they blur the limits between national security and criminal investigations, involving the judicial supervision also in borderline matters.
A similar approach might works for journalists. If it is a given that (even) a journalist can be surveilled during judicial investigations, then such measures should be even more feasible in matters concerning state security. In such instances, similar to criminal proceedings, the focus should shifts to delineating the boundaries and modalities of exercising such extensive powers, with an emphasis on establishing robust safeguards to protect journalists from potential abuses.
The risk of the EU banning encryption to weaken the secrecy of sources
Whatever the theoretical legal framework may be, it is likely that the challenge of source protection will be pragmatically addressed by journalists making their sources untraceable. This could involve operational and technological strategies, such as anonymising and encrypting communications, thereby rendering wiretapping efforts more challenging, or adopting counter-surveillance methods to ensure they are not followed or tailed.
Currently, such methods are readily accessible and provide robust security thanks to strong cryptographic methods, as exemplified by leak management platforms and messaging applications such as Signal.
The European Union has, however, been contemplating restrictions on these technologies, albeit in contexts not directly linked to journalistic activities and, once again, under the ‘greater good’ spell: the protection of minors from abuses. Of course, nobody questions the need to protect children and vulnerable individuals from violence or stalking, but once a principle is established, its broader, out-of-scope application cannot be discounted.
It is widely accepted that crimes involving minors deserve extensive investigative powers and harsh punishments for the guilty. But what if, once the principle is set, in an anti-climax, its enforcement subtly shifts from child pornography to terrorism and then to violent dissent, and then to political protests, and then to troubling news or mere dissenting or disturbing opinions?
The water temperature hasn’t got that hot yet, so the frog may still be lulled into thinking it’s in a pleasant pond, but all the signs are that the heat is rising. The boiling frog metaphor may be an idea with no scientific basis, but it has a powerful explanatory power to show that the protection of fundamental rights such as freedom of speech starts from principle, not from the drafting of obscure and convoluted legal provisions designed to enshrine a political agenda that may have far worse unintended consequences than the problem it purports to solve.