The controversy over the limits of professional secrecy for journalists, rekindled by the debate at European level on the future provision regarding freedom of the press, pits those who want journalists to be absolutely “free to investigate” against those who, instead, believe that this freedom cannot be absolute or in any case cannot be exercised to the point of compromising national security.
This debate, at least as far as Italy is concerned, has already been partly conducted in relation to criminal trials, because the balance between the right to protect the journalist’s information sources and that of the State to know his identity is already regulated, since since 1989, with article 200 of the Criminal Procedure Code. In summary, the professional journalist has the right to protect his sources, but if a judge believes that the facts reported can only be ascertained by directly questioning those who witnessed them, then the journalist must reveal the source. If, then, he is a journalist-publicist, then there is no possibility of opposing the secrecy (as happens for “blogger”, “content creator” or for anyone who boasts one of the many imaginative labels that characterize the online information).
The double relativity of journalistic professional secrecy is the prerequisite for analyzing the related question of the interception of communications between a (professional) journalist and his source.
If professional secrecy is not absolute, the journalist can certainly be intercepted by order of a judge, in the forms established by law. This is even more true when you consider that even defense lawyers can be wiretapped when communicating with the people they defend. It is true, in fact, that article 103 of the Code of Criminal Procedure prohibits doing something of this kind, but in the same article it is written that if the prohibition is violated, the only consequence is that the intercepted conversations cannot be make use in the process. It is a fairly hypocritical discipline because in a criminal investigation what matters is not only what can be formally documented, but what one can actually know. In other words: if, for example, from the prohibited interception of a communication between lawyer and client the public prosecutor understands the defense strategy, he will be able to organize the prosecution strategy in a much more efficient way, even though he will not be able to put the contents of the case in black and white. ‘interception. Thus, the law is formally respected, but in substance it is set aside.
Returning to the question of the interception of journalists, if not even the right of defense is a barrier against the practice of wiretapping, it is difficult to think that press freedom can be more protected than personal freedom. As with other areas – electronic surveillance, biometric facial recognition, etc. — the solution cannot be a generalized ban or authorization but case-by-case control by the judge. The “jurisdictionalization” of criminal prevention and criminal investigation activities will not be a perfect solution, but it is the best there is because it entrusts the task of evaluating whether the exercise of great power (that of violate the privacy of a communication) has been exercised with the great responsibility that such an act requires.
After having established that the journalist’s professional secrecy is not absolute and that even the journalist can be intercepted in the context of a criminal investigation, we can now analyze the issue in relation to the “national security” needs that animate the European debate.
First of all, it must be said that the European Union should not deal with the topic because according to Article 4 of the EU Treaty, national security is a matter reserved for member states. Regulating this aspect in a community act despite the express prohibition of the Treaty would be a Pyrrhic victory because inevitably this “excess of power” would end up fueling endless disputes which could reach the Constitutional Court and give a very strong jolt to the framework of community law or , as we like to call it for some time, union.
On the merits, it matters little whether national security needs are regulated in Brussels or Rome, because the underlying issue, which is also the stone guest, is precisely the jurisdictionalization of this political category. In other words, the question to ask is whether, and yes to what limit, national security needs should also be subjected to the control of a judge; but without a precise definition of what national security is, this is not possible because it would mean attributing to the judiciary an excessively broad power to determine — and therefore to limit — the executive’s duty to guarantee the exercise of the power of high direction of actions to protect state security.
The answer to the question, albeit in an inconsistent and problematic way, has already partly arrived with the reform of undercover operations, even if the forum in which to resolve the dilemma cannot be, as mentioned, a community regulation but rather the reform of the law 124/07 the one that deals with the topic.
A legally clear definition of national security would limit its instrumental invocation (the talismanic phrase “national security” – Alan Dershowitz wrote already in 1989 in The Best Defense—is often invoked as a clear cover for convenience, political advantages or institutional embarrassments), or not very rigorous, as has happened in the recent past.
Having said this premise, it is clear that if the professional secrecy of the journalist is not absolute and the journalist can be intercepted in the context of a judicial investigation, even more so this should be possible if the case concerns state security. If this is true, then the point becomes – as in the case of criminal proceedings – to define limits, methods of exercising this superpower, but above all effective tools for protecting information operators from the always possible abuses.
Moving from the abstractness of legal theory to the concreteness of journalistic reality, whatever the solution adopted at a regulatory level, it is conceivable that the problem of protecting sources will be resolved in pragmatic terms by putting ourselves in the position of not knowing their identity, adopting a series of operational and technological measures – that is, making extensive use of anonymisation and conversation encryption techniques – which would nullify or make the interception activity much more difficult. To date, these methods are already widely available – just think of the platforms for managing leaks or Signal – but the European Union has been thinking for some time about limiting their use even if in specific areas not connected to journalistic activity. It is also true, however, that once a principle has been established, extending its application further would not be impossible.
However, neither the States nor their a-national aggregations will have the final say because for some time now the right to decide what is a right and how it should be guaranteed has been in the hands of Big Tech.