“Shield laws” are back – but watch the drawbacks

The annual conference of the Society of Editors heard two arguments this week for “shield laws” to protect the confidentiality of journalists’ sources including a pledge from the Culture Secretary, Sajid Javid, that a future Conservative government would amend the Human Rights Act to give more “specific protection” to journalists.

There is a good account here of the speech by Gavin Millar QC, a very knowledgeable expert, and Javid’s speech is here. All this is well-intentioned and understandable: shield laws already exist in several American states. For a whole series of reasons stemming from recent disclosures, the protection of sources in the digital age is a big concern.

But there’s a big difficulty with shield laws, however tempting they might sound at first hearing. They require journalists to be a defined category of people. Once upon a time, that might have been easy: they were people who worked on the editorial content produced by printed newspapers and broadcast channels. Important disclosures are made by journalists; but they are also made by people who aren’t inclined to call themselves that.

Now, it’s not so easy. Anyone with a smartphone can “publish” to audiences large and small, simply by hitting a “share” button. Who counts as a journalist? In the aftermath of the Leveson Inquiry into phone-hacking and related wrong-doing, civil servants tied themselves into tangled knots trying to define “news publishers” who would be included in a new regulatory system.

If you believe that David Miranda, partner of the generator of the Snowden revelations about NSA and GCHQ electronic surveillance, was committing an act of journalism when he was stopped and questioned by the police at Heathrow last year, he would not have been covered by a shield law whose protection would only be available to certified professional journalists. As I’ve argued here, worrying about whether someone is a “journalist” is a distraction.

If any new law sets out to offer protection to anyone who makes disclosures in the public interest, that’s a better basis that offering that protection to members of a hard-to-define club.

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