The Channel 2 TV correspondent who interviewed the fugitive state witness in the Barnoar shooting case is bound by journalist ethics to conceal the location of the interviewee, assuming he knows it. However, the police can breach this ethical code to obtain information that would lead them to the witness, even against the journalist's will.
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The interview with the fugitive highlights yet again the tension between the ethical code of journalists, designed to protect their sources, and the protection afforded these journalists by the legal system when police try to press them for information.
The protection of journalists was first anchored in Israeli law 25 years ago by then Supreme Court President Meir Shamgar in the case of the journalist Ben-Zion Citrin. The court ruled that the protection of a journalist’s sources is only partial, and a court can order it lifted, obliging the journalist or his newspaper to provide information in cases where the public interest justifies it. This overrules the public’s need for unrestricted flow of information. It is accepted that prevention of a crime or the presence of danger to someone’s life justifies the exposure of a source of information.
In the current case, the court might consider that the risk to the witness’s life is sufficient reason to divulge his location. On the other hand, the police’s ineptitude in protecting the witness may undermine this argument.
Internal police procedures make them reluctant to turn to a journalist or a court to expose protected information. These cases are usually brought for approval by the head of the investigative branch.
For the journalist, a demand to reveal information poses a serious dilemma. Journalist immunity is indeed a relative concept, but he is also bound by the ethical guidelines of the Israel Press Council. These guidelines oblige him to maintain complete secrecy about his source under all circumstances, including police interrogation, even risking contempt of court and arrest.
In Israel, there has never been a case where a journalist was jailed to coerce him to divulge information. In contrast, in the United States, where freedom of expression is a constitutional right, dozens of journalists have been jailed in an attempt by investigative authorities and the courts to force them to give up information.
This doesn’t mean we can be proudly self-congratulatory: Technological advances now make the information possessed by journalists much more accessible and the ability to retrieve it without their consent has significantly increased.
In extensive research on journalist immunity, published recently by attorney Yisgav Nakdimon, who is also the legal advisor to the news division of Channel 2, Nakdimon stresses that the legal system in Israel still needs to contend with these issues. The interview with the fugitive witness was therefore probably conducted with full knowledge of the associated risks.
However, even if the interviewer does not reveal the location of the interview to police, the police can request an injunction from the court to disclose his phone records and those of the filming crew to locate places they visited. If everyone turned off their mobile devices, this will, of course, be of no help.