Journalistic privilege is an essential cornerstone in any democracy, and a requirement to ensure freedom of speech. For the media to hold the position as a watchdog of power, expose injustice within authorities, and guarantee individuals the courage to speak up against wrongdoings, we must allow certain benefits in the legal room. And while many countries claim to offer just this, legislation is shown to be more complicated than that. As well, the internet era we now live in poses additional issues, who is to be seen as a journalist when platforms are many and free for all? And who should then be protected? 

The rules as of today

Journalistic privilege refers to the idea that journalists should have special rights and legal protections to ensure safe reporting on public matters. This includes the right to keep certain information confidential, anonymous sources, and protection against harassment or arrest to ensure the ability to work in peace and without fear. 

The legislations are complex to define, alike, they vary from country to country. And while most democracies agree that journalistic privilege is a requirement, it ultimately isn’t an absolute right, and decisions are made on a case-to-case basis. But the topic is under current discussion. The European released an extensive report from 2022 regarding their proposed European Media Freedom Act – under which this topic falls. There they highlight, among other things, that lawsuits against journalists and cases of physical assault are increasing in the member countries. Further, it showcases the complexity by stating:

Regulations differ in the member states… As a result, journalists, who work increasingly on cross-border projects and provide their services to cross-border audiences, are likely to face legal uncertainty and uneven conditions of competition.

Still, the European Parliament is lacking in new legislation, and confusion about what legal support journalists can expect in an eventual courtroom remains. At the end of the day, the proposition is non-binding to the member countries. While breaches could be challenged before a court, it all falls on the board’s opinion to make decisions. It is uncertain what this will mean in practice as the privilege is a balancing act against other legislations, such as privacy, defamation, or contempt of court laws. How are we supposed to keep pace with the changing online environment when we struggle to define the traditional ways? 

Complications with digitalisation

The second issue is that even if further laws are enforced, it varies greatly who is to be protected. It is often just referred to as “journalists”, without any greater details on what attributes one requires. But in the cases with clarification, it is most often those who work full-time for a newspaper or broadcasting station, those getting paid for their work, or those having a bachelor’s degree in journalism. While part-time workers, freelancers, bloggers, and social media influencers are excluded. 

But should individuals who aren’t working for a newspaper the traditional way be included? This is not an easy discussion, here are some main pros and cons to consider.

Pros

One of the major reasons this debate exists is that newspapers no longer hold an absolute monopoly over information spread. There is a much greater and diverse set of voices and more situations to regard.  Among the situations where allowing protection to more is beneficial are war or conflict zones. In the event of a border closure, journalists are among the first to be denied entrance. Suddenly, information spread becomes fully reliant on citizens of the country, where reporting often occurs on social media or blogs. And many times, speaking up against a regime or criticising a situation comes with great risks. This is where protection against arrest or punishment becomes vital for continuous updates and honest insights from eyewitnesses.

Aside from extreme situations, governments that avoid including multiple voices raise censorship concerns. Why wouldn’t a more diverse perspective be beneficial, or rather, why would it be discouraged? If legislation fails to keep pace with digital developments in online platforms, it can be seen as discrimination towards independent sources and perspectives. Additionally, citizen journalism challenges the traditional media by allowing alternative narratives so they cannot single-handedly shape the public agenda.

Cons

An introduction of a more diverse legislation may bring ethical challenges. Traditional journalists follow certain codes of ethics which ensure that their publications are true, accurate, and minimise harm. Citizen journalists lack structured guidelines of these kinds, raising concerns about how it would be possible to ensure the same standards. 

If every individual were protected from naming their sources, even those who do not follow codes of conduct, cases of defamation could increase. It would in theory make it possible for anyone to publish a statement about a person without having to share where this information came from. A potentially powerful tool in affecting peoples’ careers, lives, and futures. 

The future of journalistic privilege 

We are in a period of transition, largely driven by the evolving digital landscape. As discussions on this matter progress, I believe we will be moving towards a more inclusive journalistic privilege. Whether this be due to public demand, or simply because it will become unavoidable. These complex challenges in our developing society show the necessity for adapting legislation to align with new needs, as current grey areas are likely to expand if it is left unaddressed for too long. 

We would benefit from a more inclusive media space where all voices can be heard. While I acknowledge that it’s not always possible to safeguard all published content on every platform equally, changed rules would allow for developing guidelines on the matter and increased clarification on what is required to receive these benefits in each case. Whether these be publications reporting on specific matters of public interest, those with a substantial circulation or audience, will be a later step in the progress. 

For now, the crucial issue to confront is that our media landscape has evolved, and so should our legislation.

Cover: Pexels/Afif Ramdhasuma

Edited by Josephine Daly Tempelaar