Constitutionalist Marcela Basterra analyzed Judge Ramos Padilla’s ruling. He said attributing to journalists “psychological action operations” is an “attempt to discipline the press.”
In the month of August forty years of the iconic “Watergate” case, which led to the only resignation of a president in the history of the United States (Richard Nixon).
The Washington Post journalists who made the events public, using a source that had illegally obtained the recordings that gave rise to the scandal, they won a pulitzer prize.
The criminal action brought against one of his collaborators was not accepted, as the jury decided not to formally accuse him given the magnitude of the scandal, forcing the FBI to drop the charges.
The case is symbolic, because it serves to visualize the “surveillance” power of the press in democracies, which is often called “the fourth estate.”
The recent extension of the prosecution of journalist Daniel Santoro and the criminal cases initiated against other journalists make it necessary to bear in mind some of the issues referred to the constitutional protection granted to sources of information, and to the criminal responsibility of journalists in relation to them.
Criminally involving a journalist who investigates criminal offenses or corruption cases, configures, at a minimum, a case of indirect censorship, since it acts as a “deterrent” for future investigations, violating the protection granted in article 43 of the National Constitution.
It is clear that if the right to reserve the source is granted, it is because you first have the right to access it and the information that you have provided, without this constituting a crime.
The basis for such protection also arises from art. 13 of the Pact of San José de Costa Rica that preserves “The right to seek, receive and impart information and ideas of all kinds”, and it points out that, (…) “the right of expression cannot be restricted by direct means or indirect means”.
In the Goodwin v. United Kingdom and, Ernst and others v. Belgium, the European Court of Human Rights, stated that it supposes a violation of freedom of information provide records to obtain data from journalists in order to discover its sources or details of the information disclosed by it.
The freedom and protection of information sources allows the gathering and dissemination of data that otherwise could not be obtained, and that They are necessary for the essential control function of the press in a democracy.
The rapporteurs for freedom of expression of the UN, the OAS and the OECD in their Joint Declaration on the regulation of the media, restrictions on journalists and the investigation of corruption (2003), indicated that, “workers of the media investigating cases of corruption or wrongdoing must not be the target of judicial or other harassment in retaliation for their work“.
In this sense, the Inter-American Court of Human Rights in the Bronstein v. Peru, argued that freedom of expression is not limited only to the satisfaction of an obligation of respect, but also means for the State positive obligations of protection and guarantees of independence and access to the diversity of sources. This obligation weighs not only on the political powers, but also for the judges.
Likewise, in the Kimel ruling, it states that criminal law is the most restrictive and severe means to establish responsibilities to the press. Therefore, its use as a restriction is only legitimate if it is limited to cases of strict necessity and is absolutely proportionate. Understanding criminal protection as the last ratio of the system.
The imposition of revealing the source, or pretending to charge the informant with actions such as “information laundering” or attributing to the press “operations of psychological action”, they are absolutely disproportionate and imply a serious history of attempts to discipline the press, in contrast to the guarantees that democracy and the Constitution and Treaties grant it, and that the three powers of the State have an obligation to fulfill.
* Marcela I. Basterra. Constitutional Lawyer, Doctor of Law (UBA)