BLAW10002 Lecture Notes - Lecture 10: Judicial Discretion, Professional Code Of Quebec, Wiht
14 May 2018
School
Department
Course
Professor
Journalist’s Sources
Protection of Journalist’s Sources
•Any witness who refuses to answer a relevant question or produce a document without lawful
excuse is guilty of disobedience contempt
•Journalists often make promisees to their sources to respect confidentiality as to identity
•Conflict with the law in some circumstances
•Media, Entertainment and Arts Alliance (MEAA) Code of Ethics - Article 3:
-Journalists should aim to attribute information to its source
-Where a source seeks anonymity, do not agree without first considering the source’s
motives and any alternative attributable source
-Where confidence is accepted, respect them in all circumstances
•Why protect journalists’ sources?
-Enables free flow of information
-Protection is essential to ensure sources come forward and divulge information
-Trust must be built between source and journalist
-Ongoing issue: if a journalist reveals their source once, unlikely they will be able to obtain
other sources
•What are the risks for sources?
-May have broken the law in speaking for the journalist
-E.g. doctor speaking up re: Manus Island
-E.g. potential terrorist speaking to the media
-Source may be subject to criticism for news
-Stigma of being a “snitch” - dobbing on colleagues
-Social stigmas
-Employment consequences
-Personal safety may be compromised if identity revealed
•What are the risks for journalists?
-Personal safety may be compromised
-If a journalist reveals a source, they may be compromised professionally as breached
MEAA code of ethics
•What role does the protection of journalists’ sources play in relation to freedom of speech?
-Unless we protect journalist sources, people may not come forward with information
-Public interest speech is of utmost important (e.g. exposing government/corporate
corruption, criminal activity)
•Common law position - no protection for journalists
-McGuiness v Attorney-General (Vic) (1940) 63 CLR 73
-Court sceptical of journalists claiming to have a special privilege
-Journalist revealing their source was not seen of high significance
-Public policy - truth should always be available within the courts
-Judge refused to recognise that a journalist retaining confiendecne did not outweigh the
importance of the court obtaining truth
-Privilege for journalists founded on paradox - journalist claim privilege to obtain
information to get to truth, but in court journalists do not want to reveal the truth
•Therefore, considered a judicial discretion
•John Fairfax v Cojuangco (1988) 81 ALR 1
-Court more sympathetic to arguments about non-disclosure
-The high court was of the view that a court should not compel a journalist to disclose the
identity of a source at trial unless disclosure is necessary in the interest of justice
-i.e. justice could be done without disclosure
Two situations
•Newspaper rule (pre-trial hearing for defamation proceedings)
-Eg. if you sue a media organisation, there will be pre-trial hearings such as for determining
defamatory potential of publication
-Journalist may be asked to reveal identity of source
-Source may be important in order demonstrate malice (malice defeats all defamation
defences)
-Sources may be important to determine reasonableness - published responsibly or
reasonably (s.30) and from a reliable source/there was multiple sources
-In order to argue that sources we unreliable, need t know who sources of information
are
-Under newspaper rule, journalist not required to reveal source unless it is necessary in
the administration of justice
- If a plaintiff is simply trying to find out who has spoken out against them, this is not in
the administration of justice
-Called the ‘newspaper rule’ as it used to be thought to apply only to newspapers - now
more widespread to all traditional media
•Pre-trial discovery
-Applicant (potential plaintiff) is seeking pre-trial discovery in order to discover who they
want to bring about a cause of action against
-Journalist only to reveal source if necessary for administration of justice
-Only if there is no one else that could be sued
Harvey & McManus
Harvey v County Court of Victoria [2006] VSC 293
•Two journalists for Herald Sun, charged with contempt as they refused to divulge information
about their sources
•In the context of a criminal case - journalists called for as witnesses in case
•Charged with disobedience contempt
•Journalists pleaded guilty and fined $700 but not jailed
•No recognised privilege for journalist s
Journalists’ Sources and the Implied Freedom of Political Communication
•Protects certain types of speech - political communication (relevant if information may be
used to determine who someone should vote for an election
•If journalists not revealing their sources potentially hinder freedom of political communication
•Courts divided on this issue
•No burden upon speech
-ICAC v Cornwall (1995) 38 NSWLR 207
-Burden would be restricting journalists’ speech
-Journalists remaining confidentiality would not have an impact on political
communication
-Flow on effect - if informants are not protected, this would prevent the media from
publishing public interest pieces
vs
•Obligation to reveal sources does burden speech but burden is justified because it is a judicial
discretion
-The Age Co v Liu [2013] NSWCA 26
-Age published information about Liu’s dealings wiht some members of Parliament
-Age received email documents with clear identification of source - refused to reveal
these sources
-Pre-trial discovery application - Liu wanted to sue the source
Document Summary
Journalists should aim to attribute information to its source. Where a source seeks anonymity, do not agree without rst considering the source"s motives and any alternative attributable source. Protection is essential to ensure sources come forward and divulge information. Trust must be built between source and journalist. May have broken the law in speaking for the journalist. E. g. doctor speaking up re: manus island. E. g. potential terrorist speaking to the media. Source may be subject to criticism for news. Stigma of being a snitch - dobbing on colleagues. If a journalist reveals a source, they may be compromised professionally as breached. Unless we protect journalist sources, people may not come forward with information. Public interest speech is of utmost important (e. g. exposing government/corporate corruption, criminal activity: common law position - no protection for journalists. Mcguiness v attorney-general (vic) (1940) 63 clr 73. Court sceptical of journalists claiming to have a special privilege.
