Joint Submission on the ICAC’s Application for the Court Order on the Surrender of Journalistic Materials

Hong Kong Journalists Association and Hong Kong Press Photographers Association, 2 September 2013

Foreword

  The Hong Kong Journalists Association (HKJA) is the largest union of frontline jouranlists in Hong Kong with around 500 members. Established in 1968, the objectives of the HKJA are to safeguard the rights of journalists, to promote freedom of press and to uphold moral principles of the meida industry.


  The Hong Kong Press Photographers Association (HKPPA) was formed in 1989 and has more than 100 members. HKPAA aims to improve the moral standards of news photography in Hong Kong and to deal with issues such as press freedom and digital photography.


  The Independent Commission Against Corruption (ICAC) sought a court order in mid-August demanding iSun Affairs Magazine and Commercial Radio to surrender  raw journalistic materials relating to the interviews with Mr Lew Mon-hong. The HKJA and HKPPA make a joint submission on this matter.


  In this submission, we first explain the positions of the two associations, and then we discuss the latest positions of the issues in overseas jurisdictions such as the United States and the United Kingdom.


A) The Positions of HKJA and HKPPA


  Raw journalistic materials refer to the notes, recordings and video footage obtained by journalists during interviews with that particular person or persons, which may or may not have been published. Such materials are obtained based on the mutual trust between journalists and interviewees, and a promise by the said journalists that the materials should be retained and kept properly. All in all, the journalists have to ensure confidentiality of the source of information.


  The HKJA and the HKPPA stress that journalists must keep raw journalistic materials with their best efforts in order to protect the source of information, which are often secretive. Moreover, journalists should also maintain the impartiality of journalistic work. Both are vital to the normal operations of the media industry. Thus, it is utterly important to safeguard press freedom, ensuring that the media could play the "fourth estate" role properly, i.e. as a watchdog to the society and to promote the freedom of information and to safeguard public interest.


  1) The importance of confidentiality


  During media interview, an interviewee may disclose background information or news clues to a journalist on condition that he would promise to keep the source of information confidential, or even not to disclose any part of the information to the public. Such information obtained by a journalist is often recorded in the written notes or audio recordings of journalists, and may have massive public interests or may be of highly sensitive. This are what we called raw journalistic materials.


  Raw journalistic materials should not be given to law enforcement authorities easily. This is to ensure that interviewees would provide information and their views to the journalists , without any worries about the disclosure of their identities and yet, made themselves feel embarrassed or unintended consequences. These are the moral principles of the industry that the journalists must follow. This also involves massive public interest and press freedom, and play an important role to the welfare of the society as a whole.


  If journalists break their promises and allow law enforcement authorities to inspect raw journalistic material and let the confidential news source or information being disclosed to the public, this would lead to the chilling effect -- the informants would no longer trust journalists and dare not to disclose to important information or facts to the media.


  When the source of information is shunned off, the media would no longer report the truth or reveal inside stories to the public. The role of the watchdog could certainly not be played, and it would be the public who ultimately suffer.


  The problem is: when the government departments or big corporation attempt to conceal certain “scandals” and did not want to reveal to the public, the citizens would not be able to know the truth and could not demand for remedial measures should the journalist not able to report the issues cogently due to the lack of reliable news sources. In such a case, the public would no longer have sufficient information to judge whether those politicians or officials did their work properly .


  2) The importance of maintaining impartiality


  In some occasions, some raw journalistic materials might not require confidentiality, or even some have already been published. Nevertheless, journalists should also not to hand over such notes, recordings or video footage to law enforcement authorities. The role of journalists is to report news and conduct interviews, and it is the work of law enforcement authorities to undertake investigation on possible criminal offences and to prevent crime.


  Although the work of journalists and police are very much related to massive public interests, but they should properly do their work accordingly, and should not damage the work of the others for the sake of convenience.


  If law enforcement authorities try to obtain information from media organizations during their investigations, this will surely affect public perception, which might think that the two sides are of the same coin.


  In such a case, the media industry would lose its independence and trust from the public. And, journalists might not be able to conduct interviews or filming in a normal manner. For example, demonstrators will not accept interviews by the journalists, or they might disallow journalists to film on the scene, and may even chase after journalists.


  If the media cannot report on demonstrations, the public would be unable to learn more about social conflicts. And if there are clashes break out, the public would be unable to judge the cause of such clashes, and whether the police might be using disproportionate forces during the conflict.


  3) Avoidance of  the abuse of court orders


  This is the first time for the law enforcement authorities to apply for a court order to ask for the surrender of raw journalistic materials. The HKJA and HKPPA are concerned that if a precedent is established, law enforcement agencies would frequently apply the relevant laws to obtain information from the journalists and media industry in their future investigations. This will lead to the abuse of such orders and make journalists become their investigative tools for future prosecution.


  In fact, law enforcement agents must follow stringent legal procedure to inspect journalistic materials. The ICAC is required to follow the Interpretation and General Clauses Ordinance (the Ordinance) to apply for a court order, and they have to prove that they have fulfilled the three requirements set out in Section 84 therein. Generally speaking, law enforcement authorities could only apply for a court order only after they are unable to convince media organizations or journalists to surrender the journalistic material voluntarily. Thus ,it may not be difficult for the ICAC to prove that  the second condition is satisfied, i.e. they cannot obtain the relevant information by other means.


  But the ICAC, as the applicant, is unable to convince the media industry that it is necessary to apply for a court order: the first condition under Section 84 of the Ordinance that there are reasonable grounds to believe that an arrestable offense has been committed, and the relevant journalistic materials may be of great value to the investigation of such crime or become evidence for prosecution.


  In this application, the media organizations and journalists who are asked to surrender journalistic materials are not the suspects of the relevant case. The media organisations and journalists were not involved in any criminal offences, nor do they  relate to the relevant case under the investigation of ICAC.


  The ICAC should therefore use its professional means to prove whether the suspect had committed an offense, instead of searching recklessly (or “fishing” tactic) for everything that may or may not be related to case. Furthermore, the HKJA considers that the ICAC is still unable to prove that all recordings or notes of the interview with Mr Lew Mon Hong may still be of great values to criminal investigations, or become evidence in the future prosecution.


  The HKJA and HKPPA must emphasize that this application by the ICAC is unable to fulfill the third condition mentioned in Section 84 of the Ordinance -- that there are reasonable grounds for believing that it is in the public interest that an order should be granted, having considered the benefits the order would bring to the investigation and the situation of the parties which possess the materials.


  Firstly, the interpretation of the ICAC on "investigation needs" is too wide, and using "fishing tactics" in investigations is certainly inappropriate. Secondly, surrendering journalistic materials would have negative effects to the independence of journalism and the confidentiality of journalistic materials, however, the ICAC ignored this.


  So,  apart from simply fulfilling the three conditions listed in Section 84 of the Ordinance, the court should also consider the overall situation of the case to decide whether issuing an order would violate public interest. Otherwise the ICAC would still be unable to obtain the order based on Section 89 of the Ordinance.


  The HKJA and HKPPA reiterate that the ICAC does not use its professional means to investigate the case, but, during the whole investigation process, the ICAC actually “forces” the journalists to violate their moral principles which utterly damage the independence of journalistic work. The whole process of the ICAC is certainly against public interests and does not benefit to the general public afterall. In fact, the ICAC is abusing the use of such Court order.


  (B) Latest overseas developments


  At the end of 2009, in Financial Times Ltd. and Others v The UK, the European Court of Human Rights ruled that the United Kingdom had violated the freedom of expression as enshrined in Article 10 of the European Convention on Human Rights (“the Convention”). The court reiterated the importance of protecting anonymous sources of information, and that the local court should not force several media organizations to hand over certain documents that would help the plaintiff to identify the source.


  As early as mid-90s, in Goodwin v The UK, the European Court of Human Rights ruled that the UK had breached Article 10 of the Convention when the UK law penalized a journalist who refused to identify his source. The court emphasized the importance of protecting the source because it was the basic element of the freedom of the press. Unless there exists overriding public interest, the court said journalists should not be forced to disclose their source because it would constitute the chilling effect to the media.


  For similar cases and the definition of “overriding public interest”, the article The Protection of Sources Under Fire would have more information. Meanwhile, the Court of Appeal in England has in recent years ruled that the protection of journalistic sources is of paramount public interest and the media organizations or journalists should not be called to testify in court easily.


  1) The abuse of delivery order on the part of UK police (2012)


  In Hong Kong, the ordinance regulating law-enforcement officers’ application for a production order was similar to  the UK’s Police and Criminal Evidence Act (PACE), which was passed in 1984. However, academics and lawyers in the UK have for years criticized the law based on the fact that, first, the police for their arbitrary applications for production orders, and secondly, the courts for their lax gate-keeping efforts, which led to insufficient protection to journalistic material.


  In a recent judicial review case at 2012, the High Court - in striking out a production order granted by a lower court – made such criticisms and worries.


  In the judgment, the High Court Judge said a production order would undoubtedly assist police investigations to a large extent, but the freedom of the press is protected by Article 10 of the Convention. To balance the two different aspects of public interests, the court should not deem the granting of production orders a mere part of routine work and make it too easily obtainable for the police. When a judge exercises his discretion given by PACE, he should carefully weigh the police’s grounds: what could the footage help to find out? Comparing with other ways of collecting evidence, how important would be for the police to obtain evidence from the footage? The High Court Judge also emphasized that the judge must base his analysis on the protection enshrined by Article 10 of the Convention when scrutinizing the reasons submitted by the police.


  The High Court judge noted that the police was asking for over 100 hours of video footage from the media organization and the journalist,  and unable to explain how this could help the criminal investigation. The reason given by the police was that the angle of the media’s clipping was better than its own copy only. The police’s way of obtaining evidence can be compared with the act of shooting randomly without aiming at anything, and the Court has no way to find out how much evidence could the footage provide.


  The High Court judge was also of the view that the lower court which granted the order had neglected the impact it had on the media industry. The lower court judge should have realized that journalists – with their inherent neutrality - could risk eroding public trust if they surrender news material too readily. The High Court judge pointed out that  the journalists’ neutrality that protects them during the course of work, and empower them to freely record and transmit the news.


  2) New guidelines in the United States (2013)


  In the United States, government attorneys under the Department of Justice routinely apply for summons, orders and search warrants in court to force news media organizations and their staff to surrender information and records from. In May 2013, the President of the US ordered an overhaul of such practices and policies. Less than three months later, the Department of Justice published a review report and established a new set of guidelines.



  The Department of Justice stated that it would be an extraordinary measure collect evidence from media organizations that should only be used as a last resort after every other reasonable means fails, and the relevant evidence must be of key importance in a successful investigation or prosecution. The Department of Justice also noted that it had made an undertaking with the President to urge the Congress to pass a federal media shield law that gives protection for undisclosed sources and news material. Those principles stated in the new guideline would be incorporated into the legislation if passed.


  The new guideline aims at strengthening protection for the media. First, A new mode of operation will be adopted by the government attorneys which requires them to talk to the relevant media organisations and their staff in order to obtain the relevant materials, rather than applying directly for a search warrant on the excuse that noticing media in advance might slow down investigation. Secondly, if the government attorneys plan to apply in court for summons, orders or search warrants, they should produce details of their applications to a designated department in the Department of Justice for a preliminary assessment with a view to ensuring all attorneys’ practices are consistent. Thirdly, the Department of Justice would set up a high-level permanent committee with supervisory power that can give advise to the Attorney General and his assistants on the approval of relevant application. This guideline also suggested that, the threshold for the approval search warrant approvals should be uplifting in order to avoid the unnecessary expansion of the scope of investigations. According to the guideline, the Department of Justice has to set up a mechanism under to communicate with the media regularly, in order to review and give recommendations on evidence collection policies from the media.



  3) General Comment No. 34 (2011)


  The United Nations Human Rights Committee issued the General Comment No. 34 in mid-2011. This document explains the protection of freedom of expression enshrined in Article 19 of the International Covenant on Civil and Political Rights which all signatory countries and regions should comply with.


  The 45th paragraph of the General Comment No. 34 states that “[S]tates parties should recognize and respect that element of the right of freedom of expression that embraces the limited journalistic privilege not to disclose information sources”.



Conclusion 

  In conclusion, journalists should do their best to protect raw news material and their sources, and to maintain neutrality. The Journalists Association is concerned that the ICAC’s unprecedented application of a production order for raw journalistic material would lead to future abuses of such orders, reducing journalists to the tools of the investigations or prosecutions conducted by law enforcement agencies. In recent years, countries like the UK and US, the applications of the law enforcement authorities and prosecution to force the journalists to disclose any material have been under very thorough scrutiny, not to mention the stringent procedures. This is done to ensure that production orders would not be abused, chilling effect would not be constituted, and the freedom of the press would not be undermined.



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