Moscow State University Faculty of Journalism
Perestroika and glasnost, inspired by Secretary-General Mikhail Gorbachev, in late 1980s spread around the Soviet Union and the socialist countries of Eastern Europe. This new policy meant, among other things, a sharp increase of press criticism of the activity of the communist party functionaries and public officials, of numerous cases of abuse of their offices, all sorts of illegal privileges and personal benefits, — especially if those misdeeds were committed by stubborn Brezhnev-type nomenklatura. To make such criticism grounded on real facts, journalists needed legal guarantees for their demands to get access to the information kept by governmental and party offices. In their turn, “whistle-blowers” needed legal protection from being disclosed and punished. In addition, such norms in the national law would have demonstrated adherence to international democratic standards of free speech and free press.
At that time such norms were absent in the national law for the following reasons. First of all, there was no need for the Soviet mass media to protect their sources from militia or other governmental offices – all of them were partisan and communist, thus sharing common and effective mechanisms of self-control and persuasion. Second, due to the absence of the need for law to regulate relations in the sphere of the mass media activity, for more than 70 years there was no media legislation as such in the Soviet Union. Thus the need to provide legal guarantees for the protection of confidential sources became acute only by late 1980s.
The first piece of media law that emerged in the Soviet Union, the 1990 Statute of the USSR “On the Press and Other Mass Media”, had the following norm:
“The editorial office, the journalist shall not have the right:
- to name the person who has submitted information with the proviso of non-divulgence of his/her name, except for the case when the corresponding demand came from a court of law”.
(Article 28. “Special Cases of Non-Divulging of Information.”)
This norm, sometimes in modified form, was later copied in the legislation of the former Soviet republics either before or right after the collapse of the USSR. Almost without changes it became part of the Kazakh (Art.20), Tajik (Art.29), Turkmen (Art.28), Uzbek (Art.6), Ukrainian (Art.26), Moldovan (Art.28), and Kyrgyz (Art.18) statutes on the press and other mass media, thus making editorial offices and journalists disclose their sources only upon demand from a court of law.
In 1991 the Russian Federation adopted its own Statute “On the Mass Media”, which is still in force. This act modified the provision of the USSR law in an important though not immediately obvious way. In Article 41 (“Confidential Information”) the statute says:
“The editorial office shall be obliged to keep the source of information secret and shall not have the right to name the person who has submitted information with the proviso of non-divulgence of his name, except for the case when the corresponding demand came from a court of law in connection with case it disposes of.”
And, separately, Article 49 lists among the duties of the journalist an obligation
- “to preserve the confidential character of information and (or) of its source”.
As we see the first provision makes the same as in the above cases exception regarding a demand of the court to disclose the confidential source of information. But this demand can be addressed to an editorial office only, and not to a journalist, who – according to the second norm – has no such obligation. In its turn no editorial office can be a witness in the legal sense of the word: it is not a physical person, it can only answer to a written demand of the court, if the media outlet at large – and not a particular journalist – has the information required by the court.
This legal norm is supported by the Code of Professional Ethics of the Russian Journalist, approved by the Congress of Journalists of Russia in 1994. This Code is the major, though not really effective, mechanism of self-regulation of journalists in Russia. Paragraph 4 of this Code of Ethics says: “Journalist shall keep the professional secret in regards of the source of information that was obtained in a confidential way. None shall force him to disclose the source. The right for anonymity can be violated only as an exception, when there is a suspicion that the source in a conscientious way distorted the truth and when such a disclosure is the only way to avoid a grave and coming damage to human beings.”
The problem with the Mass Media Statute, like with many other statutes in Russia, is that they do not work in full because of the absence of supporting norms in the Criminal, Civil or Administrative Procedure Codes. Moreover these and other codes might have norms that openly conflict with the Mass Media Statute. In such cases courts tend to follow more general codes rather than specific statutes, such practice is supported by legal tradition and some theories of law in Russia.
Until 2002 such a conflict did exist in the criminal and criminal procedure law. If an editor or journalist was summoned to the bodies of investigation as a witness, by the Criminal Procedure Code of the Russian Federation he did not enjoy any of the privileges, that were routinely provided for example to attorneys (Art.72). Moreover, journalists’ refusal to provide information could cause criminal punishment that ranged from a fine to an arrest for up to three months (Art. 308 of the Criminal Code).
The Criminal Procedure Code of the Russian Federation, which entered into force on 1 July 2002, has somewhat changed the situation. Art. 56 provides an extended list of persons who may not be called to testify in court as witnesses (attorneys, clergymen, etc.). The list does not mention journalists or editorial workers, which does not exclude in principle that there may be other groups enjoying relief from the duty to witness in court. This is confirmed by the Constitution (Art. 51 para. 2) which declares: “A federal statute may envisage other cases of absolution from the obligation to testify”.
Para.2 of Article 144 of the 2002 Criminal Procedure Code introduced a norm, which says:
“Reports on crimes, disseminated by the mass media, shall be checked upon instruction from the public prosecutor by the bodies of investigation. The editor, the chief editor of a corresponding mass media outlet shall pass upon demand of a prosecutor, investigator or investigating body the documents and materials in possession of the corresponding mass media outlet that confirm the report on a crime, as well as data on the person who provided the relevant information, with the exception of cases, whereas such a person made a condition that the source of information should be kept secret”.
Thus we can say that a decade after adoption of the Russian Media Statute at least a vague idea of the right of the press to keep the sources of information secret has quietly entered into one of the principal codes of law – although in a limited and conditional manner. It is likely that this new norm will be used only in the rare case when police or other law-enforcement bodies start investigation on the grounds of a report in the mass media, but not in every case when they want the name of the source of information from the editors. This would mean that prosecutor’s offices and investigative bodies will continue their routine approach to journalists like any other source of information.
Let us discuss an example. In September 2002 one of the wealthiest persons in Russia, Sergei Kukura, was kidnapped supposedly with the purpose of ransom of 6 mln. euros. The ransom demand was videotaped and planted at a Moscow cemetery. One of the most famous Russian newspapers, Izvestia, reported on the existence of the tape, a fact which was not officially made public. On September 24, prosecutors of the Moscow Region summoned Yury Spirin, the author of the newspaper report, and all they wanted to know was who had been the source of the information. In accordance with the Media Statute he refused to disclose it. At that point he was warned that charges of assistance in kidnapping would be brought against him. Interestingly enough, such criminal charges would have had a reverse effect. An accused person has the constitutional right not to testify against himself and to decline testifying whatsoever. In the end the journalist was given three days to find a lawyer. On September 25 though the kidnapped person was suddenly released under unclear circumstances and charges against the journalist were later dropped.
In civil cases the journalists as defendants should prove the truth of their reporting that does not mean that they are to disclose sources of information. A simple reference to a source will not relieve (in most cases) a journalist from liability, thus it makes no sense to disclose it.
In June 2010, Russia’s highest court adopted for the first time in its history a coherent interpretation of relevant case law in relation to the mass media, editors and journalists. The Resolution of 15 June 2010 No. 16 “On the Judicial Practice Related to the Statute of the Russian Federation ‘On the Mass Media’” (hereinafter – the Resolution) among other issues discusses the conditions for disclosure of confidential sources of information.
The Resolution reminds the courts that they shall be guided by Art. 41 of the Statute on the Mass Media, which stipulates that the editorial office is obliged to keep the source of information secret and has no right to name the person who has provided the information with the proviso that his name not be divulged. The Resolution states that the personal data of the person making the proviso is “secret information, which is specially protected by the federal statute” (point 26). An exception applies, if the demand for disclosure is made by a court of law in connection with a case pending before that court.
By providing this explanation the Supreme Court confirms that there is no contradiction between Art. 41 of the Statute on the Mass Media (which is a federal statute) and Art. 56 of the Criminal Procedure Code of the Russian Federation adopted after the Statute on the Mass Media. The importance of the explanation of the Supreme Court lies in reminding prosecutors and investigation bodies that are more accustomed to work with the Criminal Procedure Code than the Statute on the Mass Media which norm to apply – and that is the norm of the Statute on the Mass Media on confidentiality of sources.
And even though a court of law may still demand such a disclosure at any stage of the case deliberations, the Supreme Court makes an important clarification for the freedom of the media in this regard. The Resolution stipulates that such a demand is allowed only after “all other means to learn about relevant circumstances, which are important for the just examination and adjudication of the case, are exhausted and the public interest in disclosure of the source of information overrides the public interest in keeping it a secret” (point 26). Here the Supreme Court follows the case law of the European Court of Human Rights[1. E.g. judgment on the case of Goodwin v. the United Kingdom (Application no. 17488/90)]. It is clear that the Resolution obliges the courts from now on to provide reasons for why the public interest in disclosure would outweigh the necessity to keep the source secret.