Call for uniform shield laws is worth supporting, but not an easy fix

By MARK PEARSON Follow @Journlaw

Five Australian journalists face possible contempt charges for refusing to reveal the identity of their sources in court.

The journalists’ union – the Media, Entertainment and Arts Alliance – has quite rightly called for the introduction of uniform shield laws for journalists throughout Australia.

Australia’s attorneys-general managed to reach agreement on uniform defamation laws in 2005, and it is within their power to bring some sanity to the differing shield laws at federal level and in NSW, Victoria and Western Australia.

The laws in the various jurisdiction were well summarised last year by the Queensland Parliamentary Library and Research Service, and WA has passed its shield law since then.

However, as noted in the ABC’s Media Report in March, even a unified system would not necessarily protect reporters because even the most generous shield laws give a discretion to a judge to compel a journalist to answer a question in court if an answer is seen as crucial to the interests of justice.

Three Australian journalists have been jailed and others fined and convicted for refusing to reveal their sources since the early 1990s.

Only one of those cases – that involving Courier-Mail journalist Joe Budd in the midst of a defamation case – might have had a different outcome if such a shield law was in place. The others involved criminal allegations or charges and it is doubtful the presiding judicial officer would have excused a journalist from answering a ‘relevant question’.

Courts throughout the world have long insisted on witnesses answering relevant questions, whether or not they are bound by some professional or ethical obligation of silence.

Lawyers are an exception. Throughout the UK, North America and the Commonwealth a legal professional (attorney-client) privilege protects lawyers from having to reveal to the court prejudicial statements a client might have confided in them. In some places the privilege has been extended to doctor-patient relationships and sometimes to priests whose parishioners who might confess criminal sins to them. Witnesses are excused from answering incriminating questions in court. Sometimes, as in the Australian state of NSW, judges are given a discretion to weigh up all professional confidences against the interests of justice in deciding whether a question must be answered.

Canada allows a promise of confidence to be protected in court if:

–   It originates with a non-disclosure agreement

–   It is essential to the relationship involved

–   The relationship is one that should be fostered ‘in the public good’; and

–   The public interest in protecting the identity of the informant outweighs the public interest at getting at the truth.

It was put to the test in Ontario in 2010, where a National Post newspaper was ordered to produce documents upon which it had based corruption allegations against the prime minister. Despite the newspaper’s claim of a journalist-source confidential relationship, the Supreme Court decided there was no such constitutional right and that a greater public interest lay in pursuing an investigation that the source had actually forged the documents in question.

Several western democratic nations have also introduced so-called ‘shield laws’ to specifically excuse journalists from having to identify their confidential sources in court and sometimes allowing them to refuse to hand up their interview records or other documents. According to the Reporters Committee for Freedom of the Press, 31 US states and the District of Columbia have shield laws protecting journalists’ confidential relationships with their sources, although several have quite serious limitations.

Britain offered a limited protection for journalists in its Contempt of Court Act 1981. New Zealand’s Evidence Act protects journalists’ sources, but gives the discretion to a judge to override this on public interest grounds.

France amended its 1881 press law in early 2010 to protect the confidentiality of journalists’ sources after pressure from Reporters Without Borders over several violations. This was enough for a Bordeaux appeal court to rule in 2011 that a prosecutor had wrongly allowed two Le Monde newspaper reporters’ phone records to be seized when they were covering a high-profile case involving L’Oréal heiress Liliane Bettencourt.

Yet a tough shield law in another European country was not enough to protect one reporter and blogger. Young Ukrainian journalist Olena Bilozerska had her cameras, computers, phone and other gear seized by police in Kiev despite article 17 of the press law stating ‘journalists may not be arrested or detained in connection with their professional activities and their equipment may not be confiscated’. She was interrogated after posting footage of someone throwing a Molotov cocktail at a building during a protest.

Journalists have been jailed in several countries for refusing to reveal their sources in courts or hand over documents that might break confidences. Between 1984 and 2011, 21 US journalists were jailed under such laws, including video blogger Josh Wolf who was released in 2007 after serving 226 days for refusing to hand over tape of protesters damaging a police car. New York Times journalist Judith Miller served 86 days in prison in 2005 for refusing to tell a grand jury who leaked the identity of CIA operative Valerie Plame to the media. The First Amendment Center features a useful timeline on jailed journalists.

The Committee to Protect Journalists records numerous other cases, including arrests in Ghana, Ethiopia and Kenya.

It is ridiculous that Australia should have so many variations on journalists’ shield laws in an era of cross-border reporting and publishing via a range of media, including the Internet and social media.

As the Media Alliance points out, it is an area of the law in dire need of reform.

The MEAA also supports the petition for reporter Adele Ferguson, who has been subpoenaed by Australia’s richest woman, miner Gina Rinehart, seeking information about Ferguson’s confidential sources. You can add your name here, but read the terms and conditions closely before volunteering a donation, which seems to be directed to change.org to generate further support for the cause online.

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Parts of this blog have been excerpted from my recent book Blogging and Tweeting Without Getting Sued: A global guide to the law for anyone writing online (Allen & Unwin, 2012).

Disclaimer: While I write about media law and ethics, nothing here should be construed as legal advice. I am an academic, not a lawyer. My only advice is that you consult a lawyer before taking any legal risks.