Article 12 of Law No. 5187 states source protection as an express prohibition: the owner of a periodical, the responsible editor and the author of the work may not be compelled to disclose their news sources of any kind, including information and documents, or to give evidence on that matter. The article lists no exceptions. But the guarantee has its own limits of scope, and those are what cause difficulty in practice.
Limit 1: by person
The provision names three capacities: owner of a periodical, responsible editor and author of the work. Whether persons holding none of those capacities enjoy the same guarantee is arguable on the wording.
The definition of “author of the work” in Article 2(ı) is broad: the person who writes or translates the writing or news, makes the picture or cartoon, or records or edits visual or audio content. That definition was widened by Law No. 7418.
Limit 2: by type of publication
The provision speaks of the owner of a periodical. Under Article 2(c) a periodical covers printed works such as newspapers and magazines published at regular intervals, the publications of news agencies and online news sites. For non-periodical publications (such as books) the text does not name the owner of the publication; the author of the work is in any event covered.
Limit 3: journalists are not in the Article 46 CPC list
Article 46 of the Criminal Procedure Code lists those who may refuse to give evidence by reason of their profession: lawyers, physicians and other members of the medical professions, financial advisers and notaries. Journalists do not appear on that list. The journalist’s guarantee arises not from that general procedural provision but from the special provision in Article 12 of Law No. 5187, and is limited by its scope.
| Source | Basis | Scope |
|---|---|---|
| Lawyer, physician, financial adviser, notary | CPC Art. 46 | Professional secrecy — a right to refuse to give evidence |
| Journalist | Law No. 5187, Art. 12 | Not to be compelled to disclose a news source or to give evidence |
| Information constituting a state secret | CPC Art. 47 | A separate regime |
Limit 4: the guarantee does not remove liability for the publication
This is the most misunderstood point. Article 12 protects the source. If the content of a report constitutes an offence, not being obliged to disclose the source does not relieve the publisher of liability for it.
Limit 5: where the source discloses themselves
The guarantee concerns the journalist not being compelled; it does not bind the source. If the source reveals their identity, or gives a statement in an investigation themselves, Article 12 does not prevent it.
Limit 6: technical traces
Article 12 is a legal guarantee; it provides no technical protection. Telephone records, e-mail headers, location data, internal correspondence and camera footage can lead to a source. A legal guarantee does not make those traces disappear.
The promise made to a source and liability
Promising a source that their identity will be concealed makes keeping that promise both a professional and a legal obligation. Breaking it can give rise to an infringement of the source’s personality rights and to liability in damages (Civil Code Art. 24; Code of Obligations Art. 58). The scope of the promise should therefore be defined clearly when it is given.
The three riskiest scenarios in practice
- The document itself identifies the source. A watermark, metadata, a copy number or a version held by only a few people: when the document is published, the source is identified.
- Detail in the story narrows the field. “An official present at the meeting” offers no protection if three people were present.
- The source becomes part of the story. Once the source’s position is part of the narrative, protection becomes practically impossible.
The basis of the guarantee is set out in the source guide and the chain of liability in the liability guide.