Go to jail. Go indirectly to jail, via the House of Lords and Strasbourg. Is that what it takes to protect a source?

I’ll go all the way...

OBVIOUSLY, journalists should be able to protect our sources. It follows directly from the justification of journalism as the cornerstone of electoral democracy. For how else are the people to decide how to cast their vote, except with the help of truly independent reporting of the doings of government and of candidates?

And significant parts of that reporting, will, in the nature of things, be of things that the government would rather not have aired; and sources for that reporting won't come forward unless we can guarantee them anonymity. Whistle-blowers who relish the prospect of losing their jobs and homes, or even merely of being suspended pending an interminable inquiry, are rare.

So it's appropriate, in general, that the venue for the 2004 London Freelance Branch debate on the protection of sources is the House of Commons, on Monday 9 February. And, in particular, it was in this building that the government managed to change the subject of debate over Iraq from whether it had misled Parliament and the electorate - to the question of Andrew Gilligan's source, who turned out to be the late Dr David Kelly.

That seems, to journalists at least, an extremely clear-cut case: Gilligan and the BBC should, if anything, have been more obstreperous in protecting their source from Downing Street's machinations. So, too, does the case of Branch member Robin Ackroyd, who at the time of writing was still waiting for a court date to re-hear a government demand to reveal a source.

Ackroyd admits being the intermediary who passed information to the Daily Mirror about the background to Ian Brady's hunger strike in Ashworth Special Hospital. He refuses to say where he got it. And on 10 December the government's Mental Health Act Commission recommended a special new criminal offence of handling patient records.

Discussion of the protection of sources in the abstract can lead to the sort of debate over hard cases that really belongs in philosophy students' rooms after midnight. What if a journalist discovers that a murder is about to be committed? What if sources seem to be corrupt themselves? What if...

But, as the ramifications of Ackroyd's case show, the real action is in the devilish details. Organisations and bureaucracies will always want to know how information got out. And, being bureaucracies, they'll use any legal means they can find, or make a new one.

Apart from opposing itty-bitty special-purpose laws like that proposed by the mental health commission, we need to be alert to (probably) accidental side-effects of other laws. For example, there's a risk that organisations that suspect they have a whistle-blower could turn copyright law against journalists, by claiming that they hold copyrighted documents and obtaining a seizure order. Earlier this year the European Union started the process of harmonising enforcement of copyright and authors' rights. Through the European Federation of Journalists, we are working to ensure that member states' laws must prevent the granting of seizure orders and injunctions where this would compromise journalists' sources or the freedom of the press.

But how good an idea is specific protection for journalists? As far as the Freelance is aware, there are only three positive mentions of journalism in UK statute law. One, in the Contempt of Court Act 1981, lays the ground for the "qualified privilege" defence against an order to produce documents or notes. The Human Rights Act 1998 says that courts should pay special attention to the needs of free reporting; and the Criminal Justice And Police Act 2001 imposes a rather limited duty on police to return journalistic material that they seize.

The NUJ has always resisted special status for journalists on the ground that it could open the door for state regulation of the media, or for a system such as that in France where representatives of the government sit on a body that decides who can have a press card. So far, UK law has accepted that a journalist is anyone doing journalism.

And any conceivable UK legal protection is, in any case, imperfect. The US has its First Amendment to the Constitution - which has side- effects that some might find bizarre, such as lawsuits defending the "right" to tell lies in advertisements. We have the European Convention on Human Rights, whose every clause carries a proviso. Article 10, on freedom of expression, states: "The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary."

That rather comprehensive list of exemptions means that the only totally convincing reassurance we can give a source is to say that we're prepared to go to prison to defend their anonymity. And we have to mean it.

© 2004 Mike Holderness