Confidentiality, Sources, Privacy & Intellectual Property

Keeping sources confidential when asked by a court or parliament to reveal them can be punished (fine, jail)

"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 confidences are accepted, respect them in all circumstances." ~ MEAA - Article/Point 3. 

Confidences - Very sensitive issue for AUS journalists. Ethico-legal paradox, Disobedience contempt v. moral obligations.

A breach of confidence is not just an ethical issue though to breach confidence is to break the law.

The law protects confidentiality for lawyers/solicitors but not for journalists. 

Breach of Confidence - A three=point test to determine whether there has been a breach of confidentiality. The circumstances in which the information was imparted must have given rise to an obligation of confidentiality. 

The disclosure of information, even if by accident or mistake will not make a difference for breach of confidence. 

Confidential Information - Can be verbal, written, expressed or implied contract. 

Government information which is not of public relevance / public interest should not be shared. Only if it is of public interest.

Defences to Breach of Confidence

• Legal compulsion: order of the court to disclose information.
• Just cause or excuse: 'justified disclosure' (usually information relating to a crime or a fraud). Breach of confidence in the public interest. 
• Fair report.
• Protected disclosure: disclosure to one specific class of people may be considered in the public interest. 

Disobedience Contempt - Refusing to reveal your sources... No escape clauses in journalism code of ethics or conducts. Commonwealth Evidence Act and Shield laws are similar but no equivalent of the US Journalists' legislation. 

Newspaper Rule - A publisher defendant will not be compelled during...

Protections of publishers against plaintiffs on a fishing expedition. Would protect publishers / authors. 

Crikey (page 15) has a paper located here on Newspaper rule - The best reason for the application of the “newspaper rule” to defamation proceedings so that publisher defendants will not be compelled during preliminary proceedings to disclose the sources on which an article depends was best summarised by Dixon J in McGuiness’s case:

"the special position of those publishing and conducting newspapers, who accept responsibility for and are liable in respect of the matter contained in their journals, and the desirability of protecting those who contribute to their columns from the consequence of unnecessary disclosure of their identity (at page 104). 

In Australia, an exemption from privacy law applies for news-gathering activities only if the reporter and editors can demonstrate that they have established and follow an in-house code of conduct covering matters of personal privacy. 

There is still no real clear definition on what a Journalist is as bloggers etc are changing the defintion.

Readings for this week are Chapter 11 & 12.