Journalists require the ability to protect sources without fearing a jail term

Protecting confidential sources has been coined ‘the golden rule’ of journalism (Ingham 2008, p. 4), so why in the year 2013 does the legal system often abandon some of the best journalists this country has to offer? This essay will focus on the Australian legislation which becomes relevant when initiating a discussion surrounding the issues of journalistic privilege in relation to court orders which demand journalists to disobey their professional ethical code and, more often than not, to disobey their own moral code simultaneously. It will be argued that journalists require the ability to protect anonymous sources without fearing a jail term, while on the provision that this privilege only be used when public interest is a contributing factor in protecting the informant. The most pressing conflicts between the law and widely recognised journalistic ethical standards will be explored and the reasons as to why it is important for journalistic privilege to be protected rather than punished is to be discussed. Potential solutions for a more coherent system to reflect current community values will also be suggested.

This Dickensian-like situation, as Perth-based journalist Tony Barrass once called it, all boils down to the journalism fundamental that “the trust between reporter and his or her contact [i]s as sacrosanct as that between a confessor and a priest” (Barrass 2013). There is an underlying tension between journalism ethics and the legal system which surfaces when a court requires full disclosure of all relevant evidence in order to ensure the administration of justice is served. But for the journalist, to do so would mean a loss of all valued trust and credibility built throughout the course of their entire career. Serious interference with court processes such as this can give rise to a charge of contempt. Before launching into the severe ramifications of facing such a charge, it must be distinguished which arm of contempt is to be considered.

The main areas are sub judice contempt whereby published material interferes with the course of justice and contempt in the face of court which refers to improper behaviour within the court room. The aspect causing much controversy, over the past few years in particular, is that of disobedience contempt which becomes relevant in circumstances involving the refusal to give evidence or the failure to follow court orders (Australian Law Reform Commission 1987b, pp. 293-296). This is the dilemma journalists find themselves in when required to disclose a source as evidence for purposes of ensuring justice is administered in a law suit. This scenario most commonly stems from the instigation of a defamation case concerning the publication of a news story leaking material exposed to the press by a confidential informant.

It is Paragraph 3 of the Australian Journalists’ Association (AJA) Code of Ethics which is often contested. It states:

“…where confidences are accepted, respect them in all circumstances” (Alliance a 2005).

This statement does not stand alone. It aligns with globally accepted values across the journalism industry and wider, international communities alike. It warns journalists not to take advantage of their privileged position, and that it is a position of responsibility which should not be taken lightly.

If a defamation suit was to arise in response to an article containing information disclosed by a source in confidence, the court may order the journalist to reveal the identity of the anonymous informant as evidence. The term given to the act of a court ordering a person to give evidence is called a subpoena. By law, this must be obeyed or else the individual will risk finding themselves in contempt of court (Ingram & Henshall 2008). This is an order of mandamus meaning that a court issues a person to do something, such as ordering a journalist to reveal a confidential source, in contrast to an injunction whereby the court issues an order that prohibits a person from doing something. If such an order is wilfully disobeyed, then the individual will be found in contempt of court (Ingram & Henshall 2008). Some instances where journalists have faced contempt charges for refusing to accept a subpoena will be explored further in the latter half of this essay.

The stance of the courts is generally, as stated by the High Court in John Fairfax & Sons Ltd v Cojuangco (1988) 165 CLR 346, that the disclosure of a journalist’s source will not be deemed necessary “unless in the interests of justice.”  In order to achieve this, however, the courts require the full disclosure of evidence which often sandwiches journalists between a rock and a hard place. The primary view taken by the courts in relation to this area is to enforce the law but to also punish the individual, seemingly regardless of whether compliance is beyond the capacity of the person bound by the order as is most often the case for journalists (Australian Law Reform Commission 1987a, p. 55).

The Australia Law Reform Commission (1987a, p. 55) states that the coercive role of the courts is as follows:

“…an order should not be enforced… unless compliance is clearly within the capacity of the person bound, no reasonable alternative method of enforcement exists, and the sanction is likely to be effective in the particular case.”

When considering each of these points, it might lead one to think it would be difficult to prove that a journalist could ever be found guilty for contempt of court. Since journalists rarely give up their sources, it might be reasonable to suggest that the sanctions are ineffective and alternative means of enforcement should not be overlooked. This is, however, difficult to argue since, so long as the law weights the onus of proof on the journalist, the State is not required to prove a journalist’s guilt but rather, a journalist is called upon to prove that the public interest in revealing the source is overridden by “adverse effect[s] of the disclosure of the informant” and the critical “communication of facts and opinion to the public by the news media” (Evidence Amendment [Journalistic Privilege] Act 2012). Rather than a journalist carrying the burden of proving the public interest value in protecting a source, which is in practice quite difficult without introducing evidence which may actually lead to the very disclosure of the source in question, it might be more useful to adopt the Swedish model. There, the onus rests with the State, the only exceptions being that of high treason and serious national security cases to ensure that crucial balance between powers is maintained. The punitive role in punishing the perceived disobedience empowers courts to issue open-ended sanctions as a means of coercing compliance, “justify[ed] in terms of upholding the authority of the court with a view to maintaining the effectiveness of court orders” (Australian Law Reform Commission 1987b, p. 307).

The concept of aiding disobedience further complicates the current legislation. This gives rise to the potential for the anonymous source to be placed in danger if they decide to come forward with the sort evidence in order to free the journalist from the burden of a jail term. This is on the grounds that they had “knowingly cause[d], procure[d], or aid[ed]… a party to disobey an order” (Australian Law Reform Commission 1987a, p. 28).

Since it is a widely accepted ethical principle that a journalist must protect a source “in all circumstances”, it is a notion that should be considered for enforcement by law. This would allow journalists to avoid lengthy, expensive court proceedings and not to mention the stress of potentially being stripped of their personal liberties for merely doing their job. It is important to distinguish that the current system protects the State as opposed to the public interest of the State’s inhabitants. This is due to the way in which the law has the potential to deter journalists from investigating into the business activities of the wealthy. While the law claims to ultimately reflect the needs of greater society, the issue of journalists being punished for withholding is one that brings to light an instance where the legal system arguably does not stay true to its primary function.

Senator the Hon John Faulkner once made the following statement:

“Protection of journalists’ sources is one of the basic conditions of free press. As recognised 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” (Jones 2010).

This concept of adhering to the values of the well-established democratic model which shapes our society is one of the major arguments for passing more comprehensive legislation in favour of journalists when it comes to protecting confidential sources. Maintaining this frame of mind, it acknowledges the vitality of defending the role of journalism as the fourth estate as it ensures a better balance of power between the most influential structures of society – namely the parliament, the ministry and the courts – by holding them accountable to the public for their actions. Press freedom is a crucial pillar of democracy and the law’s readiness to protect journalists’ accustomed privileges is critical for maintaining a free flow of information to the public (Ingham 2008, p. 4). State secrets and major corruption scandals may go unreported if journalists fail to pursue stories which require anonymity to be given to a source for the fear of a jail term or astronomical court expenses.

It is concerning that, even with the existence of shield laws, powerful members of society can threaten journalists through costly court proceedings and undermine the public’s perception of not only the individual journalist under imminent threat, but their perception of the profession on the whole in terms of their general trust in journalism. Australia requires shield laws which allow journalists to work without “fear or favour” (Barrass 2013).

Dating back to 1994, the Australian Senate Standing Committee on Legal and Constitutional Affairs alluded to the issue that “under the current law in Australia a number of conscientious, experienced and ethical journalists have been imprisoned or fined for standing by what they consider to be their ethical and moral obligations” and that this unfavourable situation called for a remedy (Caslon Analytics 2007). In April earlier this year, the Media Alliance called upon the Standing Council on Law and Justice representing attorneys-general in the federal, state and territory jurisdictions to formulate a draft of uniform shield laws for journalists (Media Alliance 2013). This motion aimed to replicate the smooth, universalisation of defamation legislation in Australia as was seen in the passing of the Defamation Act 2005.

The shield laws currently in place recognise the protection of qualified privilege. This includes information passed on to someone in confidence due to their unique societal position. Contained within this bracket of law are the privileges between employer and employee, doctor and patient, and other special relationships including that of a journalist and a confidential source. However, most common law protection for that journalistic special privilege situation is not absolute (Caslon Analytics 2007). It is instead cushioned with some qualification which still places journalists in serious threat of contempt charges being filed against them for simply adhering to their professional code (George 2012). In Australia, there is no explicit broad-range protection in relation to media privilege. While shield laws vary between states, and some give more protection than others, in many cases they can be “overridden through a judicial subpoena or during the process of legal discovery” which renders them weak and, quite frankly, inadequate to fulfil their desired purpose (Caslon Analytics 2007).

Another perceived gap in the current law is that “non-compliance with an order of a court is generally dealt with by the court which made the order” (Australian Law Reform Commission 1987a, p. 29). This is justified due to the fact that “the court does not have an independent interest to protect” in such circumstance, but this is questionable. Surely if the court has no independent interest to protect, there should be no problem with allowing another court in the hierarchy, or at least another judicial officer, to oversee the contempt case.

The penalties for contempt of court are no joke. A journalist may face coughing up hefty fines or even be placed behind bars. In some cases, this may persevere until the journalist has “purged their contempt” by obeying the order, however uncommon in practice as the journalist is unlikely to reveal the source, or until the judicial officer feels it is no longer necessary (Ingram & Henshall 2008). Not even an early guilty plea to a contempt charge will save a journalist as, judging from previous cases, a fine might still be as high as $7000 (Ingram & Henshall 2008).

Some case examples will now be explored, with reference to changes in legislation over time. In 2007, journalists and Media Alliance members Michael Harvey and Gerard McManus were handed fines and criminal convictions for resisting to divulge confidential sources who had revealed the Federal Government’s secret decision to cut war veterans’ benefits. In response, the Federal Parliament passed the Evidence Amendment Act (Journalists’ Privilege) Act 2011 which “substantially strength[ened]” journalistic privilege, however, no absolute privilege is enshrined in law to protect journalists indefinitely. There is instead a “rebuttal presumption against disclosure of the identity of a source” (Media Alliance 2013). There is still no general form of public interest immunity (Jones 2010).

While this may have been a sign of the beginnings of the concept of journalistic privilege being embraced, it is not near enough. Uniform laws would better voice the legal system’s respect and support for journalistic privilege (Media Alliance 2013). This could be modelled upon New Zealand’s Evidence Act 2006 which states in Section 68:

“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.”.

One of the main arguments against shield laws is that they might reduce journalistic accountability as there is a concern that some journalists may exploit their absolute privilege and not feel the need to verify information given by sources if there is no risk of a law suit. This could further prove dangerous if politicians use journalistic special privilege to their own political advantage in leaking stories and fabricating information about the opposition party that could potentially go unverified. The ultimate fear is that it could lead to the overuse of unattributed sources in stories, making verification virtually impossible and potentially, in turn, cause a loss of public trust in journalism which would inevitably work against the free flow of access to information for which the journalism profession’s most foundational principles strive.

So in this way, the legal system has the power to strike a better balance between the interests of justice and the public interest which should inevitably overlap. The rights of a free press to publish are “crucial to the formation and articulation of public opinion, which is fundamental to the government of the people, by the people, for the people” (Bacon & Nash 1999, p. 10). Therefore, it must be determined to what extent the paramount ‘public interest’ rests with the people’s right to the free flow of information.

Gina Rinehart’s failed attempt at having reporter Steve Pennells reveal his sources earlier this year for a story concerning a dispute between her and her children is an example of how the shield laws in some States better protect journalists than others. For those yet to have their shield laws been put to the test in practice, only time will tell.

It might be a worthwhile exercise to compare sentencing attitudes across a range of other, arguably more serious, criminal offences such as assault or even manslaughter. A couple of months ago, a man by the name of Ryan Ian Jones was sentenced to one year and three months’ imprisonment for one count of affray involving violently punching and kicking a man as he lay defenceless on the ground, who actually later died. And David Bryan was found guilty of manslaughter, sentenced to six years’ imprisonment but with a non-parole period of three years and six months, just a little over the standard three years that journalists could face for protecting a source.

While a complex conflict exists between the courts’ administration of justice and journalistic ethical codes, there are a number of reasonable steps of action that can be taken towards strengthening a journalist’s protection in relation to anonymous sources. Universal shield laws, a reversal in the onus of proof, and disobedience contempt cases being heard by a court other than that which brought about the action may allow the law to better reflect the values of the wider community and ensure the public interest is protected. The current laws are simply backward and fail to place value on people’s trust in good journalism, instead often placing journalists in an invidious position. The moment journalists begin to give in to the system and breach their code, they would be doing society a great disservice as once there is any inkling of doubt as to the confidence entrusted to journalists, it will prompt wide scale damage to the industry’s reputation on the whole. The law has the potential to gradually shape itself to reflect the values of society, however, this can only happen if journalists continue to make a stand against the current court system. It is the only way parliament will be forced to respond to the issue and that is by reviewing legislation.

References:

  • Armstrong, M 1995, Media Law in Australia, Oxford University Press, Melbourne.
  • Australian Law Reform Commission 1987a, ‘Contempt Summary’, ALRC Report 35 (Contempt), pp. 55-58.
  • Australian Law Reform Commission 1987b, ‘Part IV Disobedience Contempt: Non-compliance with court orders and undertakings’, ALRC Report 35 (Contempt), pp. 291 – 338.
  • Australian Law Reform Commission 20
  • Bacon, W & Nash, C 1999, ‘Confidential sources and the public right to know’, Australian Journalism Review, vol. 21, no. 2, pp. 1-26
  • Bethell, P 2006, Legal Traps for Journalists, Victorian Country Press Association.
  • Evidence Act 2006 (NZ)
  • Evidence Amendment [Journalistic Privilege] Act 2012 (Cth)
  • George, P 2012, ‘Chapter 21: Absolute Privilege’, Defamation Law in Australia, pp. 347-356.
  • Hirst, M & Patching R 2007, ‘Do we need shield laws in Australia?’, Journalism Ethics: Arguments and Cases, pp. 188-191.
  • Ingham, L 2008, ‘Australian Shield Laws for Journalists: A Comparison with New Zealand, the United Kingdom and the United States’, Civil Liberties Australia, viewed 29 October 2013,http://www.cla.asn.au/Article/ShieldLaws.pdf, pp. 1-46.
  • John Fairfax & Sons Ltd v Cojuangco (1988) 165 CLR 346
  • Pearson, M & Polden M 2011, ‘Keeping secrets: Confidentiality, sources and freedom of information legislation’, The Journalist’s Guide to Media Law, pp. 265-298.
  • Price, G 2003, ‘Pack you toothbrush! Journalists, confidential sources and contempt of court’, Media & Arts Law Review 259, vol. 8, no. 4, pp. 1-36.
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About Alana Mitchelson

Alana Mitchelson is a journalist based in Melbourne, Australia. Follow her on Twitter at @AlanaMitchelson.

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