RSF demands overhaul of France's law on confidentiality of journalists' sources

A reporter for the French investigative news site Disclose, Ariane Lavrilleux, was finally released on the evening of 20 September from police headquarters in Marseille, where she was held for nearly two days and questioned for allegedly obtaining and revealing information that constituted a "national defence secret."

The search of her home and the examination of the contents of her computer, her interrogation by France's domestic intelligence agency, the General Directorate for Internal Security (DGSI), with the aim of discovering the source of her revelations, and the possibility that she will be placed under formal judicial investigation have all highlighted the weakness of the protection of journalists' sources under French law.

Under France's Law on Press Freedom (also known as the "1881 law"), no journalist can be forced to reveal their sources. And data obtained in a search targeting a journalist has to be sealed and could only be opened and added to the investigators' case file if authorised by a special "judge of freedoms and detention". But, under a 2010 amendment investigators are allowed to violate the confidentiality of journalists' sources "directly or indirectly" if there is an “overriding requirement in the public interest.”

The three major flaws of the law on the protection of sources:

• The "overriding requirement in the public interest" concept is extremely vague and allows investigators to abuse their investigative powers in order to identify journalists' sources or prevent journalists from revealing information in the public interest.
• The authority (police, prosecutor, judge) that decides to violate the confidentiality of a journalist's source does so on its own authority. It does not need the permission or approval of an authority independent of the investigation,
• A clear violation of source confidentiality is currently only penalized with procedure nullification, but the perpetrator of this violation avoids any criminal liability.

RSF calls for an overhaul of the legislation protecting the confidentiality of journalists' sources in France. The law on press freedom should include much stricter safeguards to ensure that journalists can effectively protect the identity of their sources when investigating stories in the public interest. According to the European Court of Human Rights, this right is “one of the cornerstones of freedom of the press" and its protection is essential for investigative journalism.

RSF's recommendations:

• The “overriding requirement in the public interest” provision should be replaced by one that is more restrictive and specific. Violation of the confidentiality of a journalist's sources should only be possible when needed to prevent extremely serious crimes that must be listed precisely in this provision.
•  This more restrictive provision should stipulate that prior authorisation by a special "judge of freedoms and detention" is required in order to violate the confidentiality of a journalist's sources.
•  Those benefiting from this protection should be extended in order to include not only journalists but also the authors of investigative books, documentary filmmakers, media workers, and the like.
•  Unlawful violation of the confidentiality of a journalist's sources should be penalised. The law should define it as a criminal offense.

Additionally,

• The laws on defence secrets should be revised so that they apply only to those who are required by their profession not to reveal them (such as members of the armed forces and intelligence services), and can never be applied to journalists who reveal them to serve the public interest.
•  Legal provisions making it a crime to receive information that violates professional confidentiality or the confidentiality of a police or judicial investigation should be repealed for journalists who receive such information as part of their work.

A law with the declared aim of "strengthening media freedom, independence and pluralism", contained significant improvements to the 2010 Law on the protection of sources in the version passed by the National Assembly in October 2016. But its provisions on the confidentiality of journalists' sources were struck down by the Constitutional Council the following month on the grounds that they would impede the prosecution of crimes. RSF denounced at the time that the decision was "very bad news for all journalists investigating sensitive cases”.