State Attorney of Israel v. Breaking the Silence

NGOs have a right to maintain the confidentiality of their sources of information

Breaking the Silence is an Israeli NGO that publishes the testimony of whistleblowing soldiers on its website. In January 2016 the Israeli State Attorney sought a warrant to find out the names of the soldiers. The Justice Initiative intervened in the case, arguing that international law entitles NGOs to protect their sources. Following the intervention, the government withdrew their application for a warrant, accepting an offer made by the NGO to provide information without identifying the sources.  

Facts

Breaking the Silence (BtS) is an NGO of veteran combatants that collects testimonies of IDF soldiers who have served in the West Bank, Gaza, and East Jerusalem, often in anonymized form. It aims to inform the Israeli public about the reality of everyday life in the Occupied Territories, to stimulate public debate, and to bring an end to the occupation. BtS maintains a website where it publishes testimonies, as well as thematic reports based on them.

In January 2016 the Israeli State Attorney sought a warrant for the disclosure of documentation which would reveal the identity of soldiers who provided BtS with testimonies about their service in “Operation Protective Edge” in the Gaza Strip in the summer of 2014.

The State Attorney maintained that disclosure was necessary as part of an investigation into possible criminal offences committed during that operation. The nature of these offences was not made public; according to BtS, the documents sought related to relatively minor incidents that were not known to have caused civilian casualties.

BtS opposed the warrant, arguing that its work, which involves the collection and dissemination of information to the public, is inherently of a journalistic nature, and that it is, accordingly, entitled to invoke the right to protect sources. BtS contended that a disclosure order would effectively make it impossible to continue informing the public and the authorities through the publication of anonymized testimony, thus harming the public interest.

The protection of sources is recognized as a basic guarantee of press freedom. It is also vital to NGOs working to document and expose problems in areas such as human rights and the environment. The State Attorney’s move came against the backdrop of a series of troubling moves by the Israeli government to restrict the space for civil society to operate.

The Justice Initiative worked with eight leading international experts to prepare an amicus curiae brief. The intervention, submitted in September 2016, affirmed that international and domestic practice, although limited, supports the right of social communicators outside of the traditional media, notably NGOs, to protect their sources. It also summarized the limited conditions under which an exception to the right to protect sources may be contemplated.

Following the submission of the brief, the State Attorney notified the court on March 1, 2017 that it was withdrawing its demand for a warrant, after accepting the NGO’s long-standing offer to provide raw testimony without details that could lead to the identification of confidential sources. 

Open Society Justice Initiative Involvement

The Justice Initiative worked with eight leading international experts in the field of international law on freedom of expression and comparative media law to prepare an amicus curiae brief. The brief provides an overview of international law and standards relevant to the case, as well as legal precedents established at the domestic level in other democracies. 

Arguments

The brief notes that, although the right to protect sources is not expressly mentioned in any treaty, it has been widely recognized as part and parcel of the right to freedom of expression by human rights mechanisms within the United Nations (UN), as well as within the African, European, and Inter-American regional systems for the protection of human rights.

Source protection has traditionally been referred to as a right of journalists, but international mechanisms such as the UN Human Rights Committee and the UN Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression (UNSR) have acknowledged the revolution in the media, and urged a broad understanding of what constitutes “journalism”. The UNSR has specifically argued that NGOs should be permitted to claim the right to protect a source’s confidentiality.

At the regional level, the European Court of Human Rights has not yet dealt with an NGO source protection case, but has consistently held, in a range of contexts, that NGOs perform a social function analogous to the media and are entitled to similar protections of their freedom of expression. The Inter-American Commission on Human Rights considers source protection a right of “social communicators” rather than journalists.

Source protection cases involving an NGO have arisen before domestic judicial mechanisms in the Netherlands and the UK. In both cases, the NGO’s right to protect its sources was recognized.

Extending source protection to NGOs is consistent with the purpose of this right, which is to ensure that the public is well-informed and that instances of wrongdoing or dysfunction do not go unreported. Since established democracies generally do not impose educational or licensing requirements for the practice of journalism, it is difficult to sustain that reporters operate with more professionalism, impartiality or ethical conduct than staff of NGOs and should enjoy greater privileges on this account.

The right to protect sources, like the underlying right to freedom of expression, is not absolute. But disclosure orders may deter future sources from disclosing wrongdoing and should therefore be truly exceptional. International law prescribes a number of criteria that must be met before a disclosure order can be contemplated, including that there is no reasonable alternative to disclosure and that the public interest in disclosure outweighs the weighty public interest in non-disclosure.