Do we need to protect confidential sources in order to do our jobs?

In the US, Newsweek refused to reveal the confidential sources behind its article on the treatment of terror suspects that led to widespread condemnation of tactics employed at Guantanamo Bay.

At the FIPP World Magazine Congress in May, a panel of magazine editors from Germany, France, the US and Argentina all backed the protection of confidential sources as part of journalistic ethics, and supported Newsweek's decision to resist government pressure and not reveal names.

Norman Pearlstine, editor-in-chief of Time Inc, who moderated the panel, is quoted as saying: "All of us on the panel have agreed or accepted the notion that the ability to protect confidential sources is a part of what we need to do our jobs."

During the same period, Time magazine's White House correspondent Matthew Cooper, along with Judith Miller of the New York Times, was prosecuted and faces jail time for refusing to reveal confidential sources. This follows a grand jury investigation into who revealed the identity of CIA operative Valerie Plame, the wife of Joseph Wilson, the man who investigated and refuted White House claims that Iraq had tried to purchase weapons-grade plutonium from Niger.

Time is taking its case to the US Supreme Court. In an editorial in the May 3 issue of the magazine, Pearlstine notes: "Information given in confidence is especially valuable when it contradicts or undermines public positions asserted by governments or powerful individuals or corporations. Without confidential sourcing, the ... public would never have learned the details of many situations vital to its interests, from Watergate to Enron to Abu Ghraib." Time contends that the court should recognise a reporter's privilege the same way it recognises psychotherapist-patient and spousal privilege, amongst others.

In South Africa the Mail & Guardian's Oilgate revelations, which it based on confidential information and sources, led to the gagging of the newspaper for the first time in two decades. The judge held that the right to privacy and dignity of the subject of the story, Imvume, outweighed the right to freedom of expression. According to the Mail & Guardian the ANC was a beneficiary of money paid to Imvume by state owned oil company PetroSA.

media.toolbox, and surely a host of other media organisations, has in the past also been threatened with the courts when using anonymous sources. These threats are made, and sometimes executed, even though lawyers generally accept that journalists would rather face charges for contempt of court than to reveal their sources. With no prospect of real success in tracing the leak, the law thus becomes an instrument of intimidation, wielded not out of respect for the democratic process, but arguably for malicious intent.

Herman Wasserman, senior lecturer in the Department of Journalism at the University of Stellenbosch, explains that under a controversial remnant of the apartheid era laws, the so-called section 205, journalists in South Africa could indeed be compelled legally to testify in court, where they may be asked to reveal their sources.

"Recent cases include Ranjeni Munusamy in the arms deal scandal and a while ago Benny Gool in the Pagad story," says Wasserman. "Generally, journalists defy this rule on the ethical principle that they should remain independent of the judicial process, although this viewpoint is also open for debate." Wassermann agrees that courts should recognise the relationships between anonymous sources and journalists if it is established that the conditions for anonymity are valid. He also warns that the misuse of this anonymity could undermine the media's credibility.

Robert Brand, the Pearson chair of Economics Journalism at Rhodes, who teaches media law and ethics, believes that anonymous sources are overused in South Africa, and often cover up lazy reporting. "That said, the use of anonymous sources sometimes is unavoidable," says Brand. "Often, whistle-blowers won't speak on the record for fear of persecution, and the public interest demands that the anonymously sourced story should be published. I believe the South African media should set in place checks and balances to ensure that anonymous sources aren't used unless it is absolutely necessary." Sanef (the South African National Editors' Forum) has already issued guidelines on this issue, though as Brand points out, few editors seem to be ensuring that their journalists follow these guidelines.

While the use of confidential sources remain a divisive issue in media circles, it is indisputable that they have played a major role in breaking some of the most important news stories of modern times, and that these whistle blowers face real threats to their livelihoods, at least, if their names were to be revealed.

The courts, which these past few months once again asserted their independence as one of the pillars of an open and free society, should see the value in extending to journalists the protection they require to guarantee a free flow of information and freedom of expression. This would include journalists' right to protect their sources' anonymity.