off the record | journlaw

By MARK PEARSON Follow @Journlaw

The sources of at least three journalists investigating a collapsed fund manager have been ordered by the Queensland Supreme Court to hand over all correspondence with the reporters.

The tactic is an alarming new threat to the confidentiality of journalist-source communications and comes as other reporters face direct court demands to reveal their sources.

The subpoena comes from the administrators of Gold Coast-based LM Investment Management Ltd and it demands from Trilogy Funds Management Ltd “letters, emails, facsimile transmissions, memoranda, other correspondence and reports” with a range of parties, including Sydney Morning Herald business columnist Michael West and The Australian’s Anthony Klan.

It also demands all correspondence with any other journalists from The Australian and the National Business Review in New Zealand.

It was issued on April 30 but was extended until June 14 after an unsuccessful application to have it dismissed.

West told journlaw.com it was a ‘disgraceful’ technique he had rarely encountered in his long career.

“It is a pity for journalism and intimidating,” he said.

“It’s a waste of unit holders’ money in LM.”

National Business Review reporter David Williams called it a “fishing exercise without a genuine need” – a technique that did not appear to have been used in New Zealand.

“It is an appalling tactic that should be vigorously resisted, particularly by Australian-based media. If this was happening in New Zealand, NBR would resist it as strongly as possible,” he said.

“Perhaps now I’ll have to resort to strictly using phone calls and letters.”

He said the practice of subpoenaing reporters’ communications should be banned.

“At the very least it should be resisted by the parties involved, and the courts should closely question the need for such a course.”

Voluntary administrator Ginette Muller of FTI Consulting said only one document had been provided to date which she said was “nothing of note”.

She said the purpose of the subpoena was not to identify the journalists’ sources.

“We know the source,” she said. “It is more about the people who have been subpoenaed as opposed to the journalists.”

The subpoena also sought correspondence between Trilogy and their law firm Piper Alderman and its partner Amanda Banton.

Banton told journlaw.com the court had decided the request for the order was ‘relevant’ and set aside her application to have it dismissed.

She said the journalists and their organisations could make separate applications to have the order set aside.

But that seems unlikely given the tight budgets of the major newspaper groups and the lack of any shield law for journalists in Queensland.

Reporters Steve Pennells and Adele Ferguson are awaiting court decisions on their refusal to reveal their sources after demands from Australia’s richest person, mining magnate Gina Rinehart.

I am reporting upon this latest episode to Reporters Without Borders.

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© Mark Pearson 2013

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.

By MARK PEARSON Follow @Journlaw

The sad case of a Victorian detective who revealed operational information to a newspaper journalist ended this month when senior constable Simon Artz was given a four month suspended sentence for ‘unauthorised disclosure of information’.

The sobering 10 pages of sentencing remarks of Victorian County Court Judge Mark Taft on February 5 should be read by every journalism student, journalist and serious blogger because they are testimony to one of the most serious consequences a whistleblower can face – loss of their job and mental anguish.

The ethical rights and wrongs of the Artz episode have been contested very publicly with the Australian newspaper attacking journalism educator and Crikey correspondent Margaret Simons, prompting her point by point response to the allegations and Media Watch host Jonathan Holmes blogging in her defence.

Golden Quill-winning journalist Cameron Stewart has detailed the events surrounding his source releasing him from the usual journalistic ethical obligation of confidentiality (all handled by the police, without Stewart’s knowledge).

Different versions of conversations between the AFP and The Australian about whether the newspaper would publish a report about the Operation Neath raid on a terrorist cell have been detailed. Crikey published the affidavit by AFP Commissioner Tony Negus about his phone conversation with former editor of the Oz, Paul Whittaker, which claimed Whittaker was somehow weighing up how many lives might be lost in a terrorist attack as a determining factor on whether he should publish the story. Fascinating reading, but the veracity of the Commissioner’s recollection of that conversation was eroded somewhat by him getting Whittaker’s name wrong in his affidavit – calling him ‘Neil’ instead of ‘Paul’.

The issue is clouded by ongoing animosities between The Australian and Simons, between The Australian and former Victorian Police commissioner Simon Overland, and between the Victorian Police and the AFP.

I do not have enough facts to inquire deeply into the veracity of all the contested facts, although I hope to do explore the case study further for our next edition of The Journalist’s Guide to Media Law.

Rather, I suggest the following questions and discussion points for a workshop on the law and ethics of confidential sources, using this episode as a wonderfully suitable case study. If you are a student or journalist, you are welcome to think through the questions and post any comments or queries at the end of this blog. If you are a journalism academic or in-house trainer, you might wish to work through these questions and the associated documents when exploring the contentious issue of the relationship between journalists and their sources.

Read the Cameron Stewart page 1 story ‘Army base terror plot foiled’ from The Australian on Tuesday, August 4, 2009 at this link. Discuss the newsworthy elements of this story and the various matters of public interest at stake.
Let’s go to the Judge Taft’s remarks when sentencing detective Simon Artz on February 5, 2013 and explore the journalist-source relationship. Artz was a respected detective in the Security Intelligence Group of the Victoria Police. Stewart was a highly regarded investigative reporter for the national daily newspaper. Let’s focus in on this relationship and answer the following questions:
- Explore the likely motivations at play – for the detective and the journalist
- What did we learn from the judge’s remarks about the dealings between the detective and the journalist? How might a journalist handle the discussions with such an inside source and the potential risks facing them?
- What, if any, onus is on the journalist to make the source aware of the potential consequences of discussing sensitive information?
- Consider the information being revealed. Was Artz the classic ‘whistleblower’ as we have come to use that term? Why or why not?
- Should journalists handle ‘vulnerable’ sources differently in such situations? If so, who might ‘vulnerable’ sources be, and would Artz have fallen into that category?
- Considering the journalist’s obligation of confidentiality to a source, what discussions or negotiations over the terms of that confidentiality should happen at this early stage?
- What measures can the journalist and source take in this modern era of geolocational tracking technology and telecommunications call tracing to preserve the anonymity of an inside source?
- Reading Stewart’s account, he was unknowingly ‘released’ from the obligation of confidentiality by his source without even having had the opportunity to discuss it with Artz in person. If this had not happened, what were the possible outcomes for Stewart in an upcoming court case? How might a ‘shield law’ like s126H of the Evidence Act operate if Artz was ordered to reveal his source? (Remember, however, this case was tried under Victorian law, not Australian Commonwealth law.)
Let’s now consider the early release of the copies of The Australian newspaper, detailed on page 2 of the court transcript, and in the Media Watch account of the episode.
- The Australian
- What elements of legitimate public interest can you propose for its release on the morning of the raid?
- What public interest considerations would have weighed against its release at that time?
- If the story had not been released, and the accused had appeared in court, what impact might sub judice contempt restrictions have had on the reportage of the story?
You can see from the Federal Court documents that The Australian and its editor Paul Whittaker launched a court action to prevent the release of a report by police agencies into the role of the newspaper in the events. Media companies usually go to court seeking the release of documents, not the suppression of them. Discuss the issues at play here.
What if Stewart had never known about the story and if his police sources had not given him the inside information? When would the public have heard about the raid and what information would they be likely to have learned about it?

There are many more potential issues arising from this story, not least of which concern the respective approaches of The Australian and Crikey in the aftermath. It is worth considering the extent to which media outlets can report fairly upon matters involving their own personnel.

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