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media
privilege
This page looks at media privilege or journalist's
confidentiality: protection of media sources in the public
interest. It also looks at confessional privilege.
It covers -
introduction
Western legal systems (whether through common law or through
specific enactments) provide protection for the confidentiality
of information that forms part of many relationships,
including information handled on a privileged basis in
the course of employment, information provided to professional
advisers such as doctors and lawyers and information provided
to government regarding taxation or health services.
Perceptions of the boundaries of that confidentiality
vary. Most common law protection is not absolute: it can
be overridden through a judicial subpoena or during the
process of legal discovery. Different jurisdictions have
adopted varying stances on protection for particular relationships,
notably those involving the media and religion, with legislation
and practice ranging from protection for those relationships
to requirement that information be provided to courts
in judicial proceedings.
Those differences illustrate questions about civil society,
human rights (and responsibilities) and the nature of
information in post-industrial societies. They reflect
divergent histories regarding intellectual property, privacy,
the obligations of the ruled and the duties of rulers.
They include conflicts between legal requirements and
individual or professional codes of ethics, where journalists
for example have cited personal beliefs in refusing to
divulge the identity of informants who provided information
on a confidential basis.
They also include conflicts between legal systems, with
a clash for example between secular law and canon law
over disclosure of information provided on a confessional
basis.
The Australian Senate Standing Committee on Legal &
Constitutional Affairs thus noted in 1994 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. This situation calls
for a remedy.
More
recently there have been moves to reduce clerical privilege
in the UK, US and Eire after incidents of sexual abuse
involving clergy of several churches.
We have explored questions
of medical confidentiality in the Privacy Guide elsewhere
on this site.
journalism and questions of media privilege
This section is under development. In the interim Ralph
McCoy's online
Freedom of the Press: An Annotated Bibliography
provides an authoritative and comprehensive guide to several
thousand books and articles on freedom of the press.
The parliamentary committee noted above commented -
The
place of confidential sources in the practice of investigative
journalism and the role played by the media in facilitating
the exercise of the freedom of communication needs to
be codified to ensure that the media can fulfil its
purpose by having access to as much information as possible.
This would enable the community, journalists and potential
sources to know the limitations placed upon undertakings
to maintain secrecy. At present potential sources can
rely on nothing more than their own assessment of whether
or not the journalist to whom they provide information
is prepared to go to gaol to preserve confidentiality.
In the Committee's view, the gaoling or fining of journalists
acting according to their conscience has demonstrated
that the current law has not yet reached the proper
balance between the public interest.
confessional secrecy
The privileged status of information disclosed to religious
figures in the expectation that it will not be provided
to civil authorities or the general public lies at the
boundaries of secrecy and privacy.
Pope Innocent III commented in 1215 that "whosoever
reveals a sin announced at the tribunal of penitence ...
must be stripped of his priestly office and committed
to life in a monastery of strict observance", with
confessors being willing to suffer martyrdom (on the model
of St John Nepomucene) rather than "betray a penitent
by word or in any other manner or for any reason."
Roman Catholic canon law provided that
The sacramental seal is inviolable. Accordingly, it
is absolutely wrong for a confessor in any way to betray
the penitent, for any reason whatsoever, whether by
word or in any other fashion (Canon 983)
A confessor who directly violates the sacramental seal,
incurs a latae sententiae excommunication reserved
to the Apostolic See; he who does so only indirectly
is to be punished according to the gravity of the offence.
(1388)
As
noted above, contemporary responses to such restrictions
have varied, with secularisation of Western societies
being reflected in a weakening of civil protections for
confessional privilege and a preparedness - often awkward
- to override clerical codes.
Typically, claims of privileged communication involve
four tests -
1)
one participant in the relationship is acting in a professional
capacity and has maintained a professional identity
as a member of clergy
2) the person confessing expects the communication to
remain confidential
3) neither participant in the relationship has waived
the privilege by allowing the content of the communication
to be discussed with others
4) legislation does not require testimony
A
US perspective is provided by Norman Abrams' paper
Addressing The Tension Between The Clergy-Communicant
Privilege & The Duty To Report Child Abuse In State
Statutes.
Australia
Neither the federal Constitution
nor state/territory law provides explicit broad-range
protection regarding media privilege.
The Communications Law Centre in a submission to the Senate
Inquiry into the Rights and Obligations of the Media noted
several instances of journalists being fined or otherwise
punished over refusal to disclose information from/about
confidential sources, including whistleblowers.
Journalist Tony Barrass was sentenced to seven days' imprisonment
by a Perth magistrate for refusal to identify a source
in an article about litigation involving the Australian
Taxation Office. He was subsequently convicted of contempt
and fined $10,000. Queensland journalist Joe Budd refused
to specifically identify a "high ranking public servant"
during a defamation case, indicating that he was unable
to make contact to obtain his informant's consent. He
was convicted of contempt, with a 14 day sentence.
Coverage by David Hellaby of the Auditor General's inquiry
into the State Bank of South Australia featured claims
by unnamed sources from within the inquiry that the inquiry
had uncovered large-scale fraudulent activity. During
litigation by the Bank Hellaby was ordered Hellaby to
make discovery of documents relevant to his sources and
found in contempt when he did not comply. His appeal to
the Full Federal Court (and an application for special
leave to appeal to the High Court) was unsuccessful, with
the Bank eventually agreeing not to pursue the identification
of sources and Hellaby being fined $5,000 for the time
during which he had been in contempt.
More recently Deborah Cornwall quoted an unidentified
senior police officer in writing about a NSW Independent
Commission Against Corruption investigation of police
corruption. Cornwall was charged with two counts of contempt
of the ICAC after refusing to disclose her source. The
NSW Supreme Court found Cornwall guilty of contempt, with
a two months' suspended jail sentence.
New Zealand
[under development]
Canada
[under development]
UK
In the UK section of the Contempt of Court Act 1981
provides that
No Court may require a person to disclose, nor is any
person guilty of contempt of Court for refusing to disclose,
the source of the information contained in that publication
for which he is responsible, unless it be established
to the satisfaction of the Court that disclosure is
necessary in the interests of justice or national security
or for the prevention of disorder or crime.
Interpretation
is affected by considerations that
- as
a matter of principle the necessity for disclosure "must
be convincingly established" and the basis upon
which production of information is ordered in any particular
case must not negate the right to freedom of expression
- limitations
on confidentiality of journalistic sources call for
the most careful scrutiny by the Court
- disclosure
must be in order to meet a "pressing social need"
and should be "proportionate to a legitimate aim
which is being pursued", with no less invasive
alternative
It
is also affected by Public Interest Disclosure Act
1998 (the main UK whistleblower enactment) and the
Human Rights Act 1998, requiring consistency
with the Convention for The Protection of Human Rights
& Fundamental Freedoms
1)
Everyone has the right to freedom of expression. This
right shall include freedom to hold opinions and to
receive and impart information and ideas without interference
by public authority …
2) The exercise of these freedoms, since it carries
with it duties and responsibilities, may be subject
to such formalities, conditions restrictions or penalties
as are prescribed by law and are necessary in a democratic
society, in the interests of national security, territorial
integrity or public safety, for the prevention of disorder
or crime, for the protection of health or morals, for
the protection of the reputation or rights of others,
for preventing the disclosure of information received
in confidence, or for maintaining the authority and
impartiality of the judiciary.
Jeremy
Dear of the National Union of Journalists commented in
2003 that whistleblowers
must
be protected as they will not come forward if they think
they are going to be grassed up at a later stage ...
it is the golden rule of journalism that we don't betray
our sources and are prepared to go to prison to uphold
that principle.
Disclosure
of sources also inhibits official/private leaks. As we
have noted in discussing official
secrets legislation and practice the UK government
has on occasion prosecuted officials for unauthorised
disclosure of information. Sarah Tisdall for example received
a six-month jail sentence in 1983 after the Guardian
disclosed that she was its source, providing documents
from the office of Foreign Secretary Michael Heseltine
about stationing of US cruise missiles.
USA
US courts have had an uneven record in recognition of
media and professional privilege, with acceptance in some
fora and jailing of individuals for contempt by other
courts.
Uber common law the courts did not recognise a privilege
permitting journalists to refuse to disclose confidential
sources or information acquired during the newsgathering
process. The landmark federal case is Branzburg v
Hayes (1972), in which the Supreme Court specifically
addressed the question of "reporter's privilege"
in considering three cases where reporters had refused
to disclose confidential information to grand juries.
The court ruled that the reporters must testify -
Until
now, the only testimonial privilege for unofficial witnesses
that is rooted in the Federal Constitution is the Fifth
Amendment privilege against compelled self-incrimination
... We are asked to create another by interpreting the
First Amendment to grant newsmen a testimonial privilege
that other citizens do not enjoy. This we decline to
do.
In practice journalists have sought to leverage an exception
to that ruling, based on the Court's ruling that "official
harassment of the press undertaken not for purposes of
law enforcement but to disrupt a reporter's relationship
with his news sources" might violate the First Amendment,
ie the Freedom of the Press clause in the US Constitution.
That exception reflected Garland v Torre (1958),
a case brought by Judy Garland and the first time that
a journalist claimed protection from disclosure under
the First Amendment.
In Farr v Pitchess (1975) the Ninth Circuit became
the first federal appeal court to formally recognize a
"qualified privilege" for journalists, holding
that "the newsman's privilege must yield to the more
important and compelling need for disclosure" in
considering arguments that the First Amendment allowed
withholding names of confidential sources.
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