Without such improvements, the HKJA believes that Hong Kong’s status as an information hub may be placed in jeopardy.
On July 24th 2004, the Independent Commission Against Corruption (ICAC) executed 14 search warrants against seven newspapers and the offices orhomes of several journalists. The searches were conducted under section 85of the Interpretation and General Clauses Ordinance. Part XII of thisordinance pertains to the search and seizure of journalistic material, whichis defined as “any material acquired or created for the purposes of journalism.” The newspapers concerned were the Sing Tao Daily, Apple Daily, Oriental Daily News, The Sun, South China Morning Post, Hong Kong EconomicJournal and Ta Kung Pao.
The search and seizure operations created a storm of controversy, leading toone of the newspapers involved, Sing Tao Daily, challenging the issue of thesearch warrants in the Court of First Instance. Mr. Justice Hartmann ruledon August 10th that “the ICAC was wrong in fact and in law in seeking theissue of search warrants when, in terms of the statutory scheme containedwithin Part XII of the Ordinance, it could equally have achieved itslegitimate aim by less intrusive measures.” In his judgement, Mr. Justice Hartmann tightened up the threshold for the application of the law by setting out a three-tier approach before an application for a search warrantcould be made. He also laid down several considerations before a judge couldissue such a warrant.
3. OVERSEAS EXPERIENCE
A) European Experience
Hong Kong’s law relating to the search and seizure of journalistic material,namely sections 81 to 90 of the Interpretation and General ClausesOrdinance, is based mainly on Britain’s 1984 Police and Criminal Evidence Act (PACE). This law created special procedures for the search and seizureof journalistic material. It created two special categories of journalisticmaterial, which are defined in the law:
i) Excluded material, which includes journalistic material held subject toan undertaking, restriction or obligation of confidence. Such material is inmost circumstances not subject to search and seizure. No such categoryexists in Hong Kong.
ii) Special procedure material, which is defined as “journalistic material,other than excluded material.” This is open to search and seizure provisionssimilar to those in Hong Kong.
The Court of Appeal argued that media organizations in Hong Kong are in a better position than in Britain because Part XII allows the media to apply for the return of seized journalistic material. Such a remedy does not exist in Britain.
The HKJA cannot agree. Better protection for press freedom should lie withthe imposition of a higher threshold for the granting of production ordersand search warrants. Journalists are in particular concerned that the lawenforcement authorities may uncover confidential material during search andseizure operations. Such material may include the names of confidentialsources. Mr. Justice Hartmann made reference to this possibility in hisrecent judgement, when he stated that the ICAC was seeking the names ofthose “who had disclosed forbidden information to those journalists”.
The protection of journalistic sources is considered to be essential to theintegrity of journalism as a profession. In Austria, France, Germany, theNetherlands, Norway and Sweden, courts have rarely compelled journalists toidentify confidential sources. The media tend to be afforded greaterprotection than are private individuals because they are seen to play acrucial role in safeguarding the right of the public to information andideas on matters of public interest.
Indeed, the European Court of Human Rights, in its judgement in Goodwin v. United Kingdom (1996) stated that the protection of journalistic sources “isone of the basic conditions for press freedom, as is reflected in the lawsand the professional codes of conduct in a number of (European) ContractingStates and is affirmed in several international instruments on journalisticfreedoms.”
The case concerned an attempt to force a journalist to reveal his source fora news story. The European Court of Human Rights ruled by a vote of elevento seven that an attempt to force a journalist to reveal his source for anews story violated Article 10 of the European Convention on Human Rights,which relates to freedom of expression. It ruled that such a warrant can bejustified only by an overriding requirement in the public interest.
Another more recent case, Roemens and Schmit v. Luxembourg, dealt withactual search and seizure operations. The judgement, issued in February2003, states:
“(T)here is a fundamental difference between this case and Goodwin. In the latter case, an order for discovery was served on the journalist requiring him to reveal the identity of his informant, whereas in the instant case searches were carried out at the first applicant’s home and workplace. The Court considers that, even if unproductive, a search conducted with a view to uncover a journalist’s source is a more drastic measure than an order todivulge the source’s identity. This is because investigators who raid a journalist’s workplace unannounced and armed with search warrants have very wide investigative powers, as, by definition, they have access to all the documentation held by the journalist. The Court reiterates: ‘limitations on the confidentiality of journalistic sources calls for the most careful scrutiny by the Court’. It thus considers that the searches of the firstapplicant’s home and workplace undermined the protection of sources to an even greater extent than the measures in issue in Goodwin.”
The question of the seriousness of search and seizure operations againstmedia organisations came up in a Canadian case in March 2004. The OntarioSuperior Court of Justice quashed a warrant issued against the National Postnewspaper. The law enforcement authorities issued a warrant and anassistance order to compel the production of an allegedly forged documentrelating to a story accusing the Canadian prime minister of conflict ofinterest. Benotto S.J. quashed the warrant on the ground that the issuingjudge, proceeding on an ex parte basis, had not fully considered the balanceof competing interests, and in particular the way that the media could beforced indirectly to identify a confidential source.
Benotto S.J. stated that: “The evidence establishes that sources may’dry-up’ if their identities were revealed. Without confidential sources,many important stories of considerable public interest would not have beenpublished. Confidential sources are essential to the effective functioningof the media in a free and democratic society.”
The judge also quoted Lord Denning as stating in the 1981 case – BritishSteel Corp. v. Granada Television Ltd – why newspapers should not becompelled to disclose sources:
“Their sources would dry up. Wrongdoing would not be disclosed. Charlatanswould not be exposed. Unfairness would go unremedied. Misdeeds in thecorridors of power, in companies or in government departments would never beknown.”
Benotto S.J. also makes reference in his judgement to the importance ofallowing an inter partes hearing. He stated that: “The issuing justice wasnot alive to these complex issues (protecting confidential sources) and thusnot able to perform the balancing required. By proceeding on an ex partebasis, he precluded a complete analysis of the confidentiality issue. I findthat he failed to give adequate consideration to the pertinent factor ofconfidential sources. This would have affected his decision to issue thewarrant and results in a finding that the warrant was invalid and should nothave been issued.”
This comment by the Canadian judge reinforces the danger – certainly presentin Hong Kong – that a judge may overlook crucial freedom of expressionconsiderations if he or she hears only the side of the law enforcementauthorities, and not that of the media organisation or journalist.
4. STATUTORY PROTECTION FOR JOURNALISTIC SOURCES
Several jurisdictions have legislated to protect journalistic sources,although the protection is never absolute and in certain jurisdictions, asindicated below, the standard of protection falls short of the expectationsof freedom of expression advocates, including the HKJA.
In the United States, Australia, Canada and Britain, there is no explicitconstitutional protection for journalists’ sources. However, the issue hasreceived some judicial or legislative attention in all of them.
In the United States, the Supreme Court held that the US Constitution’sFirst Amendment protection of free speech does not grant journalists theprivilege to refuse to divulge names of confidential sources in the contextof a grand jury trial. However, courts concluded that qualified privilegewas permitted in some cases. By early 1996, nine of the twelve circuits hadestablished a qualified First Amendment privilege for journalists againstforced disclosure. Significantly, the privilege has been applied to bothcivil and criminal proceedings.
These courts have balanced the freedom of expression interest against theinterests of those seeking disclosure. The balancing tests tend to resemblethe three-part test proposed by Justice Stewart in his dissenting viewexpressed in the case Branzburg v. Hayes. This test requires the partyseeking disclosure to show:
(i) that there is probable cause to believe that the reporter hasinformation that is clearly relevant;
(ii) that the information cannot be obtained by alternative means lessdestructive of First Amendment rights; and
(iii) that there is a compelling and overriding interest in the information.
A number of states have also passed press-shield laws, which are statutesgranting journalists a privilege to protect the confidentiality of theirsources. However, there are differences in such laws over whether theprivilege is absolute or qualified, who benefits from the protection andwhether confidential information should be protected.
The law regarding the protection of journalists’ sources in Australia is derived from common law. There are currently no controlling federal or statestatutory provisions. Nevertheless, Australian law does provide someprotection for journalists’ sources, for example through the relevancerequirement contained in the law of evidence. Likewise, Australian courtsaccept that the public interest in the protection of sources may allow theexclusion of such evidence, and the High Court of Australia accepted in JohnFairfax & Sons v. Cojuangco that it should not require disclosure of sources,unless it was “necessary in the interests of justice.”
A further protection is offered in limited circumstances through the”newspaper rule”, which allows journalists to refuse to disclose theirsources at the interlocutory stage of defamation actions unless disclosureis necessary to do justice between the parties.
Even though section 2(b) of the Canadian Charter of Rights and Freedomsprotects journalists from being forced to reveal their sources, there is nostatutory protection for journalists in Canada. And it is questionablewhether the charter has yet been directly addressed in case law. However, alimited privilege not to testify at a trial has been recognised as part ofthe law of evidence. In Slavutych v. Baker, the Supreme Court of Canada heldthat courts might recognise a qualified privilege not to testify where four
criteria were satisfied:
1) The communication must originate in a confidence of non-disclosure;
2) This confidentiality must be essential to the ongoing relationshipbetween the parties;
3) The relationship must be one which ought to be fostered; and
4) The injury to the relationship from disclosure must be greater thanthe benefit it would bring to the litigation.
European countries tend to be more robust in protecting journalistic sources. The European Parliament passed an important resolution on the issue in 1993. The Resolution of the European Parliament on Confidentiality of Journalists’ Sources and the Right of Civil Servants to Disclose Information stated that the Parliament:
[B]elieves that the right of confidentiality for journalists’ sources isan important factor in improving and increasing the supply of information tothe public, and that this right in practice also increases the transparencyof decision-making procedure, strengthening the democratization of theCommunity institutions and governmental bodies in the Member States, and isinextricably linked to the freedom of information and the freedom of thepress in the broadest sense, lending substance to the fundamental right tofreedom of expression, as defined in Article 10 of the European Conventionfor the Protection of Human Rights and Fundamental Freedoms.
Inter-government organisations followed suit afterwards. In December 1994,the 4th European Ministerial Conference on Mass Media Policy of the Councilof Europe adopted a Resolution on Journalistic Freedoms and Human Rights.Principle 3(d) provides that the protection of the confidentiality ofjournalists’ sources enables journalists to contribute to the maintenanceand development of genuine democracy. Principle 4 notes that anyinterference with journalism must be necessary in a democratic society,respond to a pressing social need, be laid down by law, be formulated inclear and precise terms, be narrowly interpreted and be proportionate to theaim pursued. Principle 8 provides that public authorities should exerciseself-restraint in exercising their power.
While not formally binding, this Resolution represents the understanding ofparticipating states as to the implications of the guarantee of freedom ofexpression found in Article 10 of the European Convention on Human Rights.
By contrast, the British law lags far behind such standards. Under Britain’sContempt of Court Act 1981, journalists cannot be forced to disclose theirsources unless the court is satisfied “that it is necessary in the interestsof justice or national security or for the prevention of disorder or crime.”
In 1986, Hong Kong’s Law Reform Commission recommended the enactment of asimilar provision. However, the provision was never enacted. The HKJA argued that these exceptions were far too wide to give adequate protection to the media.
It should be noted that many European countries have since developed stringent rules aim at safeguarding the confidentiality of sources. In March 2000, the Committee of Ministers of the Council of Europe adopted a recommendation elaborating on when disclosure can be forced. It states that disclosure can be ordered only if “there exists an overriding requirement in the public interest and if circumstances are of a sufficiently vital and serious nature.”
Several rigorous conditions are also imposed before disclosure can be ordered. They have to be applied at all stages of any proceedings where the right of non-disclosure might be invoked. These conditions are as follows:
1) Reasonable alternative measures to the disclosure do not exist or have been exhausted by the persons or public authorities that seek the disclosure;
2) The legitimate interest in the disclosure clearly outweighs the public
interest in the non-disclosure, bearing in mind the following:
3) a) An over-riding requirement of the need for disclosure is proved.
b) The circumstances are of a sufficiently vital and serious nature.
c) The necessity of the disclosure is identified as responding to a pressing social need.
d) European Union member states enjoy a certain margin of appreciation inassessing this need, but the margin goes hand in hand with supervision bythe European Court of Human Rights.
The recommendation goes on to state that if disclosure is ordered, then the competent authorities should consider applying measures to limit the extent of a disclosure, for example by excluding the public from the disclosure and by themselves respecting the confidentiality of such a disclosure.
The group of specialists that prepared the recommendation stated that public interest in disclosure might outweigh the interest in non-disclosure only where the information would be necessary to protect human life, prevent major crime or in defense of a person accused of having committed a major crime.
It should be noted that this recommendation plus European Court of Human Rights case law became the basis for the protection of journalistic sources in a new press law adopted in Luxembourg in May 2004. The Belgian parliament has also adopted a draft law on the protection of sources, although it includes an exception for anti-terrorism laws.
5. PROPOSALS FOR CHANGE
In many jurisdictions, the party seeking disclosure will have to demonstrate not only the presence of a countervailing interest but also that the information sought is of sufficient importance to warrant a disclosure order. This means that the courts will weigh the harm of disclosure to freedom of expression against the countervailing interest. Given the importance of the former, the latter is only occasionally deemed dominant. In addition, in a number of jurisdictions, if the information may be obtained by other means, or if the goal served by disclosure has substantially been satisfied in another way, courts will not order disclosure.
Given that Part XII of the Interpretation and General Clauses Ordinance fails in many significant ways to fully reflect contemporary legal thinking on the need to adequately protect press freedom, the HKJA would make the following recommendations for change.
1) That adequate and proper protection be given to journalistic material held in confidence. This means that the law enforcement authorities should in most circumstances be barred from searching for and seizing such material. Search and seizure should be permissible only in the most exceptional of circumstances. Further, information should be accessed only by those who are directly involved in such cases, and they should themselves respect the confidentiality of any disclosure.
2) That hearings to consider an application for a search warrant should be held inter partes, as in section 84, to allow newspapers and journalists an opportunity to put their case to a judge. As the quote from a Canadian judge above shows, a judge may easily overlook freedom of expression considerations if he or she hears only one side of the story – that of the law enforcement authorities, to the exclusion of the media organisation or journalist. An inter partes hearing would redress this imbalance.
3) That the circumstances under which journalistic material may be seized should be limited further. An additional condition should be added to section 84(3), such that a judge would have to be satisfied, in considering whether to issue a production order, that “the public interest in obtaining the journalistic material clearly overrides the public interest in protecting press freedom and that the circumstances are of a sufficiently vital and serious nature.” This condition should also be taken into account in considering whether to issue a search warrant under section 85.
4) That the threshold for considering whether “an arrestable offence hasbeen committed” in section 84(3)(a)(i) should be raised to “a seriousarrestable offence”, to bring it into line with British legislation. Thiswould ensure that potentially damaging action could not be taken against amedia organisation merely because a minor arrestable offence was involved.
5) That adequate appeal mechanisms should be incorporated in legislation. Inparticular, seized journalistic material should be sealed in ALL cases, toallow for news organisations and journalists to launch an appeal. This wouldrequire the scrapping of section 85(7), which allows the authoritiesimmediate access to material. This provision runs contrary to the principlethat all parties to a case should be allowed the right to launch a judicialappeal before the material in question is viewed.
6) That judges, in considering applications for production orders and search warrants relating to journalistic material, should consider the interests of innocent third party sources.
HKJA Executive Committee
November 2nd, 2005