On the secrecy of journalistic sources.

A few weeks ago, the Argentine justice pide the journalist Santiago O'Donnell the delivery of the recording tapes in which he recorded conversations with Mariano Macri, brother of the former president, which served as the basis for his book Hermano. The decision is from the national civil court No. 6 and is contrary to numerous judicial precedents of the most relevant instances—-appeals chambers, criminal investigations—-which took article 43 of the Constitution seriously when it guarantees the “secrecy of news sources of information.

This case is in any case somewhat curious: it is the source itself, recognized, who seeks access to the journalist's recordings to question, presumably, how he reflected those conversations in his book. Those conversations, however, enjoy a presumption of protection under Article 43 for various reasons. For example, it is possible that in these conversations the journalist has referred to other sources, whose identity he wishes to protect. Or those recordings may include personal insights that you want to keep private. They may even contain off the records of the interviewee himself, that—again—the journalist has a right beforehand to protect and protect. The same thing happens with the annotations that the journalist may have made about his talks: notebooks, papers, computer records--all of this falls under the protection offered by article 43 of the Constitution, and an order to produce all the material in which journalists record their main task (that of gathering information) is contrary to that constitutional guarantee.

It is worth remembering why the Constitution protects that right. The constitutional function of this protection is to allow journalists the widest possible degree of freedom to exercise their function, keeping them away from possible legal claims that operate as disincentives to their work, that promote self-censorship or that unduly restrict the range of action of a profession that is fundamental to the democratic system. There are some alternative interpretations of article 43 that, for example, restrict the protection of journalistic sources of information to their potential affectation via the habeas dates. But I think they are incorrect and do not reflect the constitutional value of freedom of expression in our legal system. The best way to interpret article 43 is in relation to the other constitutional norms that protect freedom of expression and freedom of the press.

There is another dimension to the case--that it deserved a sentence of nothing more and nothing less than Committee to Protect Journalists—-which deserves further reflection. The national civil justice based in the Federal Capital used to show, in the past, a certain detachment from freedom of expression as a fundamental constitutional right that impacts numerous conflicts of a civil nature. There are exceptions to this principle, and in general in recent years numerous judicial precedents have been seen that adequately weigh the importance of this right when adjudicating cases on defamation, insults, etc. But there is a structural weakness there that civil judges should seek to resolve on their own volition, without waiting for higher instances—or the Supreme Court, in innumerable cases—to correct them.