Should the promise of confidentiality have limits for Journalists

 Should the promise of confidentiality have limits? Discuss this question from both legal and ethical perspectives and provide an example(s) to illustrate your argument.

Australian Journalists are liable for keeping confidences with their sources. The question is often raised, more so in recent years as to whether a journalist should reveal their sources as evidence when legal action is taken against them. (in Pearson) This question brings dilemmas which involve considering legal and ethical perspectives. Furthermore, recently the Commonwealth Parliament and other states have either amended or considered changes to their "Evidence Acts." (APH)

Before becoming a Commonwealth, Australia operated under the British legal system which operated without a journalist ever being jailed for refusing to reveal a confidential source. (Pearson, page 266) Though since the late 1980s journalists have been jailed for obeying their ethical guidelines. Between 1992 and 1994 journalists from prominent Australian organisations were sentenced for not revealing sources of information made in confidence.

·         Courier Mail Journalist, Joe Budd, was imprisoned for not revealing sources for an article which led to defamation action against the courier mail. (in Pearson)

·         South Australian Advertiser Journalist, David Hellaby was fined for refusing to disclose a source. (The News Manual)

·         Madonna King of The Australian was threatened with contempt prosecutions for publishing material from a Queensland Criminal Justice Commission investigation. (The News Manual)

Journalists like those mentioned above often find themselves in contempt of court. This is due to the journalist holding to their ethical code, to not reveal sources made in confidence.

There have been several calls for Commonwealth Parliament to introduce a framework to protect journalists as summarised by the Queensland Parliamentary Library and Research Service in their Shield Laws for journalists research brief. (QPLRS) A submission to amend the Evidence Amendment (Journalists' Privilege) Bill 2009 lapsed when parliament adjourned pending the 2010 Commonwealth election. (QPLRS; ARK) The amendment sought to expand matters which the court could use at its discretion to determine whether or not to protect confidential sources.

While there is an argument that journalists should disclose the sources of their information. Essentiality a journalist always seeks to reveal the sources of their information as it builds credibility and trust with the public. However, in some situations, information of public concern will not be disclosed to a journalist if the information is not kept confidential. The Media, Entertainment & Arts Alliance (MEAA) code of ethics states keeping confidence is the cornerstone of a journalists' ability to maintain trust:

"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, point 3)

Unfortunately the code of ethics has no legal standing. Though there is a situation that a journalist can decide not to disclose a source by using the 'Newspaper Rule' while in the introductory stage of a defamation action or during pre-trial discovery procedures. (Ingham, page7)

The rule allows the publisher to take responsibility for the content, making the sources identity an unnecessary pursuit. It also prevents improper questions for the sole aim of identifying more sources to be sued. (in Ingham) Pearson mentions several cases through his book where courts have considered the rule. One such case is Mayor's case (2001) which involved an article in the Sydney Morning Herald which alleged conflicts of interest in property deals:

"Mayor's case (2001). An article in the Sydney Morning Herald alleged conflicts of interest in property deals involving a mayor of a suburban council... The newspaper... objected to answering questions  in the interrogatories where the answer would disclose its sources." (Pearson, page 272)

Justice Simpson of the NSW Supreme Court applied the 'Newspaper Rule' and agreed that the newspaper should be excused from "giving any answer to the extent that the answer might identify the source of its information." (AustLII) The 'Newspaper Rule' therefore provides no real safety for journalists as it ceases to apply once the trial begins. (Ingham, page7)

The 'Newspaper Rule' is essentially the closest special privilege a journalist has until the introductory of "Shield laws." Shield laws have been used to protect a journalist from being held in contempt of court if they refuse to give evidence for not disclosing their sources. These laws provide positive outcomes for  democracy as they protect sources who may not come forward otherwise, by promoting the flow of information into the public sphere. (ind Ingham) Although shield laws may seem straight-forward there are concerns that they would be used by spin-doctors to hamper the administration of justice.

In April 2013 the MEAA published a media release calling for a uniform approach to shield laws for journalists, as currently they vary between the states. The release discusses five journalists including Adele Ferguson who said:

"Right now, I am faced with every journalists' most-feared nightmare: comply with a court order to hand over documents that I promised would be kept confidential, or face a jail sentence for contempt of court.” (MEAA, paragraph 6)

In agreement with the MEAA no journalists should be subject to having to reveal their sources of information if made in confidence. Journalism is essential in a transparent democracy and shouldn't be punished for acting in the public interest. (in Change.org) If Australia is to stay true to freedom of the press or as the constitution puts it an implied freedom than a journalist must be able to protect their sources. 

Works cited

AustLII. " Cotter v John Fairfax Publications Pty Ltd [2001] NSWSC 587" In 13 July 2001. Web         8 May 2012.
        URL <http://www.austlii.edu.au/au/cases/nsw/supreme_ct/2001/587.html>

AustLII. "The Implied Constitutional Freedom of Political Communication and Australian        Media Policy." In. 2003. Web 7 May 2012.

        URL <http://worldlii.austlii.edu.au/au/journals/UTSLRev/2003/4.html#Heading70>

Australia's Right to Know (ARK). "Submission to the Inquiry into the Evidence Amendment (Journalists' Privilege) Bill 2009." Inc. April 2009. Web 8 May 2013.
        URL <http://www.aph.gov.au/binaries/senate/committee/legcon_ctte/journalists/
        submissions/sub08.pdf>

Australian Parliament of Australia (APA). "Evidence Amendment (Journalists' Privilege) Bill 2009."
        URL<http://www.aph.gov.au/Parliamentary_Business/Bills_Legislation/Bills_Search_
        Results/Result?bId=r4091>

Change.org. "Gina Rinehart: Withdraw your subpoenas against Adele Ferguson and Steve   Pennells #pressfreedom." Web 8 May 2012
        URL <http://www.change.org/en-AU/petitions/gina-rinehart-withdraw-your-subpoenas
        -against-adele-ferguson-and-steve-pennells-pressfreedom>

Ingham, Lorraine. "Australian Shield Laws for Journalists: A comparison with New Zealand, the United Kingdom and the United States." Australian National University. Web 7 May   2013.
        URL <http://www.cla.asn.au/Article/ShieldLaws.pdf>

Media, Entertainment & Arts Alliance (MEAA), "Media Alliance Code of Ethics". Web 8 May         2013.
        URL <www.alliance.org.au/code-of-ethics.html>

Media, Entertainment & Arts Alliance (MEAA), "Uniform shield law needed to protect   confidential sources". Inc. 2 April 2013. Web 8 May 2013.
        URL <http://www.alliance.org.au/uniform-shield-law-needed-to-protect-confidential-sources>

Pearson, Mark. Journlaw. "Call for uniform shield laws is worth support, but not an easy fix."

        Inc. 11 April 2013. Web 8 May 2013.
        URL <http://journlaw.com/2013/04/11/call-for-uniform-shield-laws-is-worth-
        supporting-but-not-an-easy-fix/>

Queensland Parliamentary Library and Research Service (QPLRS). "Shield Laws for   Jouranlists." Inc February 2012. Web 7 May 2013.
        URL<http://www.parliament.qld.gov.au/documents/explore/ResearchPublications/
        ResearchBriefs/2012/RBR201203.pdf>

The News Manual. "Contempt & Court reporting in Australia." Inc 2008. Web 8 May 2013.     URL <http://www.thenewsmanual.net/Resources/medialaw_in_australia_03.html>

The Parliament of the Commonwealth of Australia, House of Representatives. "Evidence             Amendment (Jouranlists' Privilege) Bill 2009." Web 7 May 2013.
                URL <http://parlinfo.aph.gov.au/parlInfo/download/legislation/ems/r4091_
                ems_4a37cb5b-b745-476b-946a-9b66e8abff1a/upload_pdf/327408.pdf
                ;fileType=application%2Fpdf>