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Protecting the journalists’ privilege: reporters go to court

Fairfax’s Richard Baker and Nick McKenzie are two of the five journalists currently involved in legal disputes for not revealing their sources. Image supplied by MEAA

The protection of confidential sources is an ethical and legal minefield for journalists in Australia, despite the introduction over the past two years of so-called journalists’ privilege in several jurisdictions, including in New South Wales, Victoria and Western Australia, as well as federally.

Currently, five journalists are involved in court proceedings which could see them jailed if they are unsuccessful in claiming the so-called privilege. This has prompted the journalists’ trade union, the Media, Entertainment and Arts Alliance (MEAA), to call for uniform national laws to enable journalists to protect confidential sources.

The MEAA’s Code of Ethics – Australia’s only national code for journalists – is unequivocal about this:

Where confidences are accepted, respect them in all circumstances.

The difficulties with the existing laws – collectively known as “shield laws” - are three-pronged. First, they do not confer an absolute privilege, but something more akin to a discretion of the court. Broadly speaking, before forcing a journalist to reveal the identity of a confidential informant or “source”, the court must take into account the possible consequences, including the risk of harm to anyone, and weigh this against a broader public interest or the needs of the administration of justice.

For example, under Commonwealth law, what is called the privilege is conferred in the following terms:

If a journalist has promised an informant not to disclose the informant’s identity, neither the journalist nor his or her employer is compellable to answer any question or produce any document that would disclose the identity of the informant or enable that identity to be ascertained.

This seems to be a straightforward and comprehensive privilege. However, the law also allows for the possibility that a court may overrule it if the court decides that the public interest in the disclosure of the informant’s identity outweighs two competing considerations. Any likely adverse effect of the disclosure on the informant or any other person is one such consideration, and the public interest in the communication of facts and opinion to the public through the media and, accordingly, in the ability of the media to access sources of facts.

The laws are also not uniform. The factors the court must take into account in deciding whether to uphold the privilege are numerous, and vary from one jurisdiction to another. There are other differences too. For example, Victoria has a let-out for its new Independent Broad-based Anti-corruption Commission (IBAC), in whose proceedings the privilege does not apply.

It is extremely uncertain who can claim the privilege in the first place. The Commonwealth legislation contains the following definitions that are central to the scope of the Act:

journalist means a person who is engaged and active in the publication of news and who may be given information by an informant in the expectation that the information may be published in a news medium.

news medium means any medium for the dissemination to the public or a section of the public of news and observations on news.

It is important to note that the Commonwealth law does not attempt to limit the definition of “journalist” to someone who is employed by a major media company, or who is working full time or who is in some formal way recognised as a journalist. The definition is based on the nature of the work done, combined with the expectation that it will be published in a news medium of some kind, not necessarily the traditional news media outlets.

The term “news medium” is similarly broad. The above definition certainly appears to include bloggers as well as anyone else who may wish to engage in disseminating news or comment, even to perhaps a relatively small audience.

Media campaigners have called for press shield laws to be strengthened and clarified. AAP/Julian Smith

The states’ laws, while similar in their definition of “news medium”, appear to define “journalist” more narrowly. The NSW, Victoria and WA laws all define a journalist in terms such as “a person engaged in the profession or occupation of journalism”, whereas the Commonwealth defines it as “a person engaged in active publication of news”.

It seems probable in the world of the blogosphere that where the states’ laws are invoked, the courts will have to clarify this definition. This creates a substantial element of uncertainty around the scope of the privilege in the States. Who exactly will be able to claim it?

Complementing these “shield laws” are “whistleblower” laws, designed to protect people who reveal serious wrongdoing inside organisations. These too lack uniformity. They also lack clarity and breadth, applying in most jurisdictions only to the public sector and not private companies.

It is clear, then, that the five journalists currently caught up in legal proceedings in which they may be required by the court to identify their confidential sources, face complex legal and ethical difficulties, with potentially severe consequences whichever way they turn. Fines or imprisonment if they defy the court, if they comply, professional opprobrium and distress to conscience for a serious breach of ethics.

The five are: Steve Pennells of the West Australian and Fairfax Media journalists Adele Ferguson, Richard Baker, Nick McKenzie and Philip Dorling. The court actions have been brought against Pennells and Ferguson by Fairfax’s majority shareholder Gina Rinehart. Chinese-Australian businesswoman Helen Liu has brought actions against Baker, McKenzie and Dorling. Baker and McKenzie also face separate proceedings brought by defendants in the Securency case.

The case for strengthening and clarifying these laws, and making them uniform, is compelling.

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