Legal dilemma of revealing and protecting source

This is not the first time and will not be the last time where media will interview people committing criminal offences. This week a report on “Smoke in Thimphu despite border closure” the reporter interviewed some people involved in illegal selling or buying of tobacco in the capital raising questions as to the law enforcement agencies of their inefficiency to implement the law effectively.

Some people took to social media to raise concerns why police could not question the reporter to reveal the identities of source and get them arrested. This brings an interesting issue of freedom of press (right to protect sources) and reporter’s duty to report a crime as a responsible citizen.

Section 430 of Penal Code (PCB) makes a criminal offence for failure to report a crime, if the person, “witnesses any person committing a crime.” Section 167 of the Civil and Criminal Procedure Code  (CCPC), empowers the citizen to arrest another person, if one “reasonably believes that person has committed or intends to commit a criminal offence or is wanted by the law for the commission of an offence.” And Article 8(10) of our Constitution mandates that “every person shall have the duty to act in aid of the law.”

Further, Section 6.6 Code of Ethics for Journalist in Bhutan (This code has not been revised as per ICM Act, 2018) makes a legal duty for a journalist to reveal their sources if required by any law. The reporter as an individual citizen has a fundamental and legal duty to report the crime to the authority. Article 7(5) of the Constitution which guarantees the “freedom of the press, radio and television” seems to only way to protect source.

However, the constitutional jurisprudence on this aspect remains a tussle between the liberal and conservative judges across the world.  For example, in a famous case of Branzburg v. Hayes, the Federal Supreme Court of United States, the majority view was a reporter’s  “privilege should be judged on its facts by the striking of a proper balance between freedom of the press and the obligation of all citizens to give relevant testimony with respect to criminal conduct. The balance of these vital constitutional and societal interests on a case-by-case basis accords with the tried and traditional way of adjudicating such questions and the courts will be available to newsmen under circumstances where legitimate First Amendment interests require protection.”  But the minority (dissenting) view was that “informants are necessary to the news-gathering process, the press must be far more than merely print public statements or publish prepared handouts, unless the press is to be a captive mouthpiece of ‘newsmakers’.” If the state can “compel newsmen to disclose information received in confidence, sources will clearly be deterred from giving information, and reporters will clearly be deterred from publishing it, because uncertainty about exercise of the power will lead to ‘self-censorship.”

While there are no specific legal means to protect media’s sources in Bhutan, there are laws which can compel the reporter to reveal their sources. The Article 7(5) of the Constitution is still away from the judicial interpretation and the media’s right to protect source or privileged information remains undefined. The dilemma of “to reveal or not to reveal” remains in the hands of the state.  Yet, on the positive side, neither the law enforcement agency nor our courts have summoned or compelled any journalist to reveal their sources till now.

Disclaimer: The views expressed in this article are author’s own.

Sonam Tshering

Lawyer, Thimphu

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