Employer liability for employee defamation

Publications >Protecting Journalists confidential sources (Shield Laws)

 

In compiling news stories journalists are frequently provided with information from confidential sources on an ‘off the record’ basis. Without the ability to procure information in this way it would often be impossible to publish important hard hitting stories pertaining to crime, corruption, maladministration and some of the excesses of government and political power.

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Paragraph 3 of the AJA Code of Ethics for MEAA members provides however that ‘Where a source seeks anonymity, do not agree without first considering the source’s motives and any alternative attributable source. Where confidences are accepted, respect them in all circumstances.’

 

Courts can and from time to time have in the past often sought to compel journalists to reveal the identity of their confidential sources. In those circumstances journalists frequently find themselves in an ethical dilemma. If they reveal a source they may be in breach of their professional ethics. On the other hand if they refuse to reveal the identity of a source when so ordered by a Court, they risk criminal prosecution for contempt of Court. Journalists have from time to time been imprisoned for refusing to disclose the identity of a confidential source.

 

R –v- McManus & Harvey

In a relatively recent Court decision two journalists, Gerald McManus and Michael Harvey, were charged and subsequently convicted of contempt of court. They had collaborated in writing an article for the Herald Sun Newspaper. Subsequently criminal charges were brought against the Commonwealth Public Servant who it was alleged was the source of information for the story. In the preliminary court hearing of those charges both McManus and Harvey were called to give evidence however they each refused to answer questions which would identify their source. Consequently contempt charges were subsequently preferred against the two journalists. Although they entered early pleas of guilty they were each fined $7,000 narrowly avoiding a period of imprisonment in the process.

 

In the decision the Court made the following statement in relation to the contempt charges;- ‘In each case there is a clear statement that the claim for privilege has no effect, that the contempts are to be viewed seriously and that inevitably a prison sentence is to be imposed…………..Ordinarily, as the authorities show, a sentence of imprisonment is invariably necessary and there is much force in the observations of Abadee J that it should never be the case that immunity from answering can be purchased by the payment of a fine.’

 

Legislative change

Primarily as a consequence of the case against McManus and Harvey the Federal Government introduced legislative changes under the Evidence Amendment (Journalists’ Privilege) Act 2007. Although this legislation went someway to improving the situation for journalists it still did not afford them any general form of public interest immunity which protected the confidentiality of their sources. Essentially the Act has given court’s discretionary power in certain limited circumstances to order that a journalist is not required to answer questions which might reveal a source.

 

At the present time the legislation is however only relevant to proceedings in Federal and ACT courts. The New South Wales Government introduced virtually identical legislation however none of the other States have at this stage introduced any legislative changes.

 

In coming weeks the Senate is to vote on the Evidence Amendment (Journalists’ Privilege) Bill 2009. This follows a Government election commitment to ‘strengthen protection for journalists’ sources’. In his speech to the Upper House on the second reading of the Bill on 15 June 2009, Senator Faulkner made the following statement; “Protection of journalists’ sources is one of the basic conditions of free press. As recognized by the European Court of Human Rights in 1966, without such protection, sources may be deterred from assisting the press in informing the public on matters of public interest.”

 

Even if the amendments presently under consideration are passed by the Senate the protection prescribed under the legislation does not go far enough. Whether the amendments to the legislation are passed or not journalists are still left in the same invidious position. Arguably this legislation would not have aided McManus or Harvey.

 

The position outside Australia

This ethical problem is not peculiar just to journalists in Australia. Whilst some countries have with varying degrees of success introduced laws to protect journalists in such circumstances, many other Governments continue to grapple with the problem.

The United States is expected later this year to vote on legislation which will in such circumstances give some qualified protection.

 

The United States Congress is presently considering the legislation known as the Free Flow of Information Act of 2009. The preamble of the Act provides;- ‘An Act to maintain the free flow of information to the public by providing conditions for the federally compelled disclosure of information by certain persons connected with the news media’

The legislation if passed will provide that under United States federal law, journalists will not be compelled to divulge the identity of their confidential sources or documents except in certain limited circumstances when ordered by a Court. In all matters, whether they be criminal or otherwise a party seeking disclosure will be required to satisfy a Court:

 

	that they have exhausted all reasonable alternative sources of the testimony or documents sought; and
	the public interest in compelling disclosure of the information outweighs the public interest in news gathering.

 

In addition to the above in criminal matters it is provided in the draft legislation that the party seeking to compel disclosure will have to establish:

	that available evidence discloses that there are reasonable grounds to believe that a crime has been committed and
	that the testimony or documents from the confidential source are critical to the investigation, prosecution or defence

 

In matters other than criminal investigations or prosecutions the party seeking disclosure must establish that based on information obtained other than that procured from the journalist concerned, the testimony or document sought is critical to the successful completion of the matter.

 

In order for the legislation to apply a journalist must be regularly involved in news gathering and it must form a ‘substantial portion’ of their ‘livelihood’.

The New Zealand Parliament has adopted a more robust approach to the situation. Section 68 of their Evidence Act 2006 provides:

“Confidentiality – Protection of Journalists’ sources.

(1) If a journalist has promised an informant not to disclose the informant’s identity, neither the journalist nor his or her employer is compellable in a civil or criminal proceeding to answer any question or produce any document that would disclose the identity of the informant or enable that identity to be discovered.”

An “informant” is defined under the New Zealand Act as – “a person who gives information to a journalist in the normal course of the journalist’s work in the expectation that the information may be published in a news medium”

 

A “journalist” is defined as - “a person who in the normal course of that person’s work may be given information by an informant in the expectation that the information may be published in a news medium.”

It is expressly provided in the Act that the presumption in favour of non-disclosure can be rebutted by application to a Judge of the High Court however the onus rests on the party seeking disclosure to show that ‘the public interest in the disclosure of evidence of the identity of the informant outweighs – (a) any likely adverse effect of the disclosure on the informant or any other person; and (b) the public interest in the communication of facts and opinion to the public by the news media and, accordingly also, in the ability of the news media to access sources of facts.”

 

Summary

 

The introduction in 2007 of the Commonwealth Evidence Act provisions pertaining to confidential sources at least was some recognition by the Government of the day of the problem facing journalists in the routine performance of their duties. However the legislation does not go far enough and it is unlikely to even with the further amendments presently being considered by the Senate. With the possible exception of New South Wales and the ACT there is certainly a strong case for the other States and the Northern Territory Governments to introduce their own shield laws.

 

There appears to be no plausible reason why a uniform system of shield laws modeled on the New Zealand Evidence Act should not be adopted by Governments at both State and Federal level. The changes presently being considered by the Federal Government are inadequate and do little to improve the situation for journalists.

 

Mark Jones
Senior Consultant

 

"The information contained in this article is general in nature and cannot be regarded as anything more than general comment. Readers of this article should not act on the basis of this comment without consulting one of Rostron Carlyle's legal practitioners who will consider their particular circumstances."

 

Expertise

 

Rostron Carlyle's lawyers have a wide range of experience assisting journalists to protect their confidential sources.

 

Not only will you find that Rostron Carlyle is likely to have assisted someone in your exact situation, but you’ll find that a Rostron Carlyle lawyer can distill a complex legal issue into a set of actionable options for you to consider.

 

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