This is one of the riskiest areas of journalism and it is not answered by a single article. There are three layers.
Layer 1 - The Source Safeguard
Art. 12 of Press Law No. 5187 provides strong protection: the owner of a periodical, the responsible editor and the author of the work cannot be compelled to disclose their news sources of any kind, including information and documents, or to give evidence on the matter.
| Element | Scope |
|---|---|
| Who | The owner of the periodical, the responsible editor, the author of the work |
| What | News sources of any kind, including information and documents |
| Against what acts | Compulsion to disclose and to give evidence |
Art. 22 of the Constitution is complementary: the secrecy of communication may be interfered with only by a duly issued judicial decision; where delay is prejudicial, the written order of the competent authority is submitted for judicial approval within twenty-four hours and lapses of itself if not approved within forty-eight hours.
Layer 2 - The Publication Itself
The content of the document may separately limit publication:
- Constitution Art. 28 - those who write, have printed, print or pass on to others news or writing that threatens the internal and external security of the State or its indivisible integrity with its territory and nation, or that is of a nature to incite offence, rebellion or insurrection, or that concerns State secrets, are liable under the provisions of the law.
- Law No. 5187 Art. 3 - press freedom may be limited for the purpose of preventing the disclosure of State secrets or the commission of offences; but the limitation must conform to the requirements of a democratic society.
- Law No. 5187 Art. 21 - publications disclosing, in certain cases, the identities of victims and of offenders or victims under eighteen are punished.
Layer 3 - The Nature of the Document
A document containing State secrets, trade secrets or personal data produces separate liabilities. Freedom of information legislation defines those categories in terms of access:
| Category | FOI exception | Measure |
|---|---|---|
| State secret | Law No. 4982 Art. 16 | Classified information that would harm State security, foreign relations, national defence |
| Criminal investigation | Law No. 4982 Art. 20 | Disclosure would lead to an offence or endanger questioning |
| Private life | Law No. 4982 Art. 21 | Health information; personal information constituting an unjustified interference with honour and dignity |
| Trade secret | Law No. 4982 Art. 23 | Information treated as a trade secret by the laws or given in confidence |
The Criminal Legislation Is Not in This Set
The Consequence on the Press Card Side
Art. 8 of the Press Card Regulation requires that the applicant has not been convicted of certain offences; among them are offences against State secrets and espionage offences (Art. 8/1-ç). Art. 8/1-e also requires that they have not been convicted of the offences in Art. 25/2 of Law No. 5187.
Under Art. 38 the subsequent loss of those qualities requires cancellation of the card, and under Art. 38/3 obtaining a card again depends on action being taken under Arts. 12 and/or 13/A of Criminal Records Law No. 5352.
The Risk of Seizure
Art. 25 of Law No. 5187 governs the seizure regime: a public prosecutor - and law enforcement where delay is prejudicial - may seize at most three copies of any printed work as evidence for an investigation. Seizing the whole run is possible only where an investigation or prosecution has been commenced, for the offences listed in the article, and by decision of a judge.
Art. 30 of the Constitution protects the equipment: a printing house and its annexes established in accordance with the law, together with press equipment, may not be seized or confiscated, or prevented from operating, on the ground that they are instruments of crime.
A Pre-Publication Risk Check
- Has the authenticity of the document been verified? An unverified document is a separate area of liability.
- Can the public interest be set out concretely?
- Does the document contain personal data? Is redaction needed?
- Is there a risk of identity disclosure within Art. 21 of Law No. 5187?
- Will the whole document be published, or the newsworthy part?
- Have technical measures been taken to protect the source?
- Has a lawyer's opinion been obtained - before publication?
Protecting the Source Technically
Summary
- Three layers operate together in reporting based on a leaked document: the source safeguard in Art. 12 of Law No. 5187, the publication limits in Art. 28 of the Constitution and Arts. 3 and 21 of Law No. 5187, and criminal liability arising from the nature of the document.
- The criminal legislation underlying the third layer is not in this article's source set; always consult your lawyer before publishing a concrete document.