Current protection of a journalist's sources is defined in the law on the treatment of criminal cases no. 88/2008 and the law on the treatment of
private cases no. 91/1991. The current media bill contains articles protecting a journalist's sources. It however states that journalists have a
right to refuse to expose their sources except when a court ruling states otherwise, as per art. 119 of the law on the treatment of criminal cases no.
88/2008. This seems an overly broad exception to such an important principle and it may contradict principle 3 of Council of Europe recommendation R
(2000)7, upon which the media bill's source protection statutes are based. Given the consensus nature of CoE recommendations, we should strengthen
source protection to far exceed this recommendation.
Where statistics have been collected, internal whistleblowers account for most revelations of corporate and government corruption. The rights of the
people to benefit from these disclosures should not be abridged and just like in many other countries, specific mechanisms to encourage the reporting
of unethical practices should be considered. One could envision, for example, an absolute right to communicate information to a member of the
The USA Federal False Claims Act (31 U.S.C. §§3729-3733) provides model protections and incentives for those who report frauds made against the
government. According to the Government Accounting Office (2006), $9.6 billion was recovered for the government under this act, which protects and
encourages the reporting of frauds against the government in a number ways. For instance, by providing employment guarantees that preserve seniority
status and salary, as well as providing 15 to 30% of the monies recovered as a compensation and reporting incentive.
The proposers suggest that changes be made to laws regarding the rights and duties of official employees (no. 70/1996) such that official employees be
allowed to break their duty of silence in the case of extreme circumstances of public interest. Similar changes could be made to municipal governance
law (no. 45/1996) regarding employees of municipal governments. Suggestions for such changes have been made in three proposed bills, parliamentary
documents 41 from the 130th legislative assembly, 994 from the 132nd legislative assembly and 330 from the 133rd legislative assembly. It may also be
appropriate to make changes to article 136 of the general criminal code (no. 19/1940), such that the interest of the public must always be weighed in
procedures against public servants who have disclosed classified information.
Belgian law since 2005 was designed to explicitly protect all communication between sources and journalists, with both groups defined broadly. But
such protections may have limited effect if protected communication records between journalists and sources are automatically stored by third
Currently Icelandic telecommunications law no. 81/2003 implements EEA mandated data retention. It applies to telecommunication providers and its
current implementation mandates the retention of records of all connection data for 6 months. It states that communications companies may only deliver
information on telecommunications in criminal cases or on matters of public safety. It also states that such information may not be given to others
than police and public prosecution.
The European directive that caused this law to come into effect, 2002/58/EB from 12. july 2002 regarding privacy and electronic communication, is up
for review in the autumn of 2010 and the German constitutional court is expected to rule whether or not data retention is at odds with the European
Human Rights Treaty. Given these developments and a general trend towards more privacy awareness, the Icelandic data retention laws may need updating
to address these concerns.
Another aspect of communications protection comes from chapter V of the currently implemented law 30/2002 on e-commerce and electronic services, which
provides indemnity for "mere conduits", such as telecommunications networks and Internet hosting providers. There are few and mostly well defined
exceptions to this indemnity, but the exception for general court orders without further definition is worrying. This should probably be improved by
clarifying which exact circumstances can trigger such exceptions.
Limiting prior restraint
Prior restraint is any legal mechanism that can be used to forcibly prevent publication. Such restaints have a significant negative impact on freedom
of expression. Most democracies place strong and in some cases absolute limitations on prior restraint. Methods for guaranteeing that existing laws
not be abused in the attempt to limit the freedom of expression should be explored.
Equal access to justice is an important part of democracy. Even in countries with strong constitutional protections for the press, such as the United
States, there is weak process protection, and as a result it may be financially infeasible for publications to participate in legal battles. Even in
the cases where the publications have the capacity to defend themselves, it may be against their economic interests. An example of this is the case
where Time Magazine was litigated in the United States for running a cover story on financial corruption in the Scientology cult. Although Time
magazine eventually won the case, it had to spend $7 million in legal fees taking the matter all the way to the Supreme Court--effectively a
multi-million dollar "fine" against Time magazine for engaging in quality, research based journalism. It would have been impossible for a smaller
publication to mount such a defence, and it would be impossible for Time Magazine to take on many such battles, creating a "chilling effect" on
quality journalism and interferring with the democratic process.