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.