It’s incredible to me that the courts are debating now, more than 6 years since Daphne was killed, how to protect the identities of the sources whose conversations with Daphne remained on her communications devices after her murder.
This was always an issue. Hours after Daphne was killed journalists gathered for a march in Valletta led by the then president of the journalists’ association, the IĠM, Norma Saliba. Bless her. She had the foresight at the time to speak about the protection of Daphne’s sources. She filed a note in court on behalf of her professional colleagues demanding that the courts act to protect her sources.
It now appears from evidence heard at the re-opened compilation of evidence against Yorgen Fenech that rules about the protection of sources have not been set yet and under pressure from the accused’s defence team the court is now working on these rules which will be made known early in the new year.
Read this report in The Malta Independent on the proceedings. I’m highlighting an extract that focuses on the discussion on the “criteria”, as they’re being called, for identifying a correspondent sending a message or an email to Daphne as a source, thereby justifying the redaction of their name. The implication being that the name of whoever doesn’t meet those criteria would be exposed.
(Charles Mercieca, attorney for Yorgen Fenech asked) the (court) expert (Martin Bajada) what criteria would be used to determine who qualified as a source and who didn’t.
Bajada said that if a person was mentioned on the Running Commentary website and on the phone, they would be considered as a source, adding that persons who Caruana Galizia had identified on her website as having contacted her were not being considered as sources.
This method was questioned by Superintendent Keith Arnaud, appearing for the prosecution. Arnaud asked whether emails or messages which had not resulted in articles were being treated as sources. Bajada replied that at the moment they weren’t and that this was why he was asking for guidance from the court.
Arnaud argued that the criteria Bajada was currently using were not enough, as they did not protect people who had provided Caruana Galizia with information, which she had been prevented from publishing by her murder. The Superintendent submitted that informants whose information had not yet been used for whatever reason, should also be classified as protected sources.
Answering Mercieca, Bajada confirmed that he could not complete his task until this issue was resolved.
Mercieca said it was a matter of utmost importance that the court have access to an unredacted copy of the data, while the parties were given redacted versions. He asked that submissions on the definition of sources be dealt with in the next sitting. ‘We agree that there is no interest in the identities of the sources, but we don’t want more information than necessary to be redacted.’
I want to make some observations on this.
Firstly, surely the criterion for a name to be exposed and for a piece of evidence to be heard in court and placed in the file of the case against someone accused of a crime should be whether it is relevant to the case being prosecuted. The evidence may be necessary to help prove the guilt of the accused or it may exculpate them in which case it is equally relevant. If it does neither of those things then it should remain private.
Quite independently from the fact that the victim was a journalist and she was killed because she was a journalist, the fact that someone has been murdered does not deprive them from every other right they might have. Victims, even dead ones, are still entitled to privacy and not to have their personal lives exposed to the world beyond what is necessary to determine the culpability (or otherwise) of those who killed them.
That right extends to whoever else was in the victim’s life and had nothing to do with their killing. Just because your name happened to be in the phone records of someone who was killed does not automatically mean that the world needs to know that fact.
And now on the matter of sources. There seem to be extremely restrictive definitions of sources in the discussion in court which implicitly means that the candidates for exposure are many.
I’m not sure I understand what the witness is saying here, nor, since I was not in the room when he testified, can I be sure something was not lost in translation between the expert’s lips and the newspaper report. But the notion of matching the subject matter of a conversation Daphne had with someone with the content of her reporting and excluding everyone who doesn’t fit in any of those matches is a horrible idea.
Superintendent Keith Arnaud makes a fair point. There may have been information she had not yet published and by that narrow definition those sources would be excluded which is particularly galling since she was, after all, killed to prevent her from publishing that information.
But looking a bit wider than this case: a source of information does not automatically result in publication. There’s a lot of checking that goes on. Some information cannot be corroborated and is left parked until some other source shows up independently. Some sources provide information on deep background, material that can’t be used, but that enrich the journalist’s understanding of what’s really going on and helps them do their work.
Those too are sources that need protecting and none of them would fit the definition of a source that seems to be on the table right now.
I don’t know what’s in those phone records so I can’t make an assessment of the risks involved for the persons that may be exposed for no reason other than the inability of this process to filter out the evidence that is strictly relevant to the trial for Daphne’s murder from the rest of Daphne’s life and work. I worry I might be better able to make that assessment when those names are made known for no reason other than to sow confusion.
There’s a wider implication to this. If the state is going to be cavalier with the information that has come in its possession because a journalist was killed for her work, there’s going to be a chilling effect on other sources of other journalists.
That sounds like the chilling effect would first kick in now, which is a ridiculous idea. The chill went up the nation’s spine that nightmare afternoon of 16 October 2017 and we’re still shuddering.
They didn’t kill Daphne where no one would see it happen. They perpetrated an act of terrorism intended to intimidate into silence her sources and other potential sources. This is what we’d do to you, they roared with through that flame. No doubt the chilling effect when that happened was irreparably harmful and immeasurably consequential.
There’s no call for the state, for the courts in this case, to help in the renewal of this act of silencing terrorism. The protection of one journalist’s sources is necessary to preserve the viability of the work of all journalists. The names of those sources are an example for the still unnamed witnesses to wrongdoing who are assessing that great dilemma, whether to remain silent or to speak of what they know without fear of retribution.
The possibility that they might be accidentally exposed because the phone of the journalist they might inform could find itself in the hands of the police is another reason for them to clam up.
It’s true that if the information they passed was true they can’t have done anything wrong. But as we know that doesn’t stop people who want the truth covered up from using any means to harm those who expose them.
In the midst of all this, it is really chilling that Martin Bajada testified he cannot explain how he found seals on drives storing data from Daphne’s devices broken.
The process of securing justice for a journalist who has been killed cannot be turned into a threat to independent journalism in and of itself.