Tag Archives: sources

By MARK PEARSON Follow @Journlaw

Q: When is a journalist not a journalist? A: When trying to earn a shield law privilege.

Sadly, that is too often the situation for those using confidential sources for their online reportage, even when it is exposing serious wrongdoing.

So-called ‘shield laws’ are limited protections offered to journalists trying to keep their sources confidential. But, even in the US, they are even more restricted when it comes to bloggers, ‘citizen journalists’ and social media users.

Shield laws vary widely in their scope, sometimes only applying to material that has already been ‘published’ and sometimes specifically naming ‘journalists’ and ‘news media’ as those protected.

Federal shield laws introduced in Australia in 2011 extended to bloggers and tweeters – but only to those ‘engaged and active in the publication of news’.

Some US state shield laws can be interpreted to cover new media users, while others are narrowly construed to apply to journalists in the mainstream media. Montana’s shield laws were held to apply to anonymous Internet commenters in 2008 when a former political candidate launched a defamation action over material on the Billings Gazette’s site.

But a blogger who was sued for defamation over comments on a message board failed to win protection under the New Jersey shield law in 2011. The former Citizen Media Law Project’s Justin Silverman  developed a useful state-by-state analysis of shield laws for bloggers.

The application of Californian shield laws to bloggers was questioned in 2010 when Gizmodo gadget blog editor Jason Chen appeared in a video on the site displaying a prototype of an Apple iPhone 4G which had been lost then purchased by an intermediary for about $5000. Police seized six computers and other items from Chen’s home. But the matter was not tested when charges against Chen were not pursued.

There were calls for a US federal shield law after travel bloggers Chris Elliott and Steve Frischling were subpoenaed in late 2009 to find the anonymous correspondent who had provided them with a Transportation Security Administration security directive they had posted after a failed terrorist attack. But the TSA backed off and withdrew its demands. 

The waters get murkier as the traditional media contract throughout the developed world and continue to retrench journalists, with many then turning to the Web and social media to continue their work. Some can only do it part-time and may not be defined as  ‘engaged and active in the publication of news’. The same goes for students who often produce excellent investigative journalism but are not yet doing it for a living. It is debatable whether they would earn the protection of shield laws under many definitions.

And then there is the serious blogger with an agenda – not meeting the usual definition of ‘journalist’ and perhaps even rejecting the term. Nevertheless, should such an individual’s claim to a shield law privilege be allowed? Policy makers in most jurisdictions think not.

What do you think? I welcome your comments below.

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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.

By MARK PEARSON Follow @Journlaw

We might support shield laws for journalists and bloggers but the actual practicalities of protecting confidential sources are a huge challenge for journalists in the modern era.

It’s of little value having a shield law to excuse a journalist revealing the identity of a whistleblower in court if litigants or government agencies have already been able to detect them using the surveillance regime that is ubiquitous in modern society.

It prompts the serious question: Could the Watergate investigation by the Washington Post three decades ago happen in the modern era? How long would Carl Bernstein and Bob Woodward’s White House source ‘Deep Throat’ (senior FBI  official Mark Felt) remain anonymous today?

It would be interesting to hear from Bernstein and Woodward about how they would manage their top secret source in an era of geo-locational tracking, phone and social media e-records, CCTV in private and public spaces, and email logs.

Add to that new technologies like Google Glass and you start to wonder where a journalist could possibly meet in secret with a government source without being caught in the surveillance net.

The volumes of private information held on every citizen by governments and corporations was highlighted in the documentary Erasing David, where the lead character went into hiding and hired some of Britain’s top investigators to try to find him by discovering everything they could about him via public and private files. He found it was impossible to lead a private and anonymous existence in the 21^st century.

Our digital trail extends wherever and whenever we conduct business on the Internet. The typical web browser allows countless ‘cookies’ that track many of our online activities. Search engines, app stores, airlines, travel booking agencies and countless other online entities hold all sorts of digital information about us that may or may not be secure or subject to legal discovery in the case of a court action. Some European experts are so concerned about the amount of information about us that is out there and its irretrievable nature that they are proposing a new ‘right to be forgotten’ allowing citizens to have personal data permanently erased.

Law enforcement authorities throughout the world are winning court orders to search suspects’ Internet records. Facebook is a popular hunting ground, with Reuters reporting federal judges in the US had approved more than two dozen applications to retrieve incriminating data from Facebook accounts between 2008 and 2011, leading to several arrests and convictions. The Electronic Frontier Foundation has published a useful online Know Your Rights! guide for US citizens faced with the threat of search and seizure of their devices by law enforcement authorities. EFF attorney Hanni Fakhoury explained the volumes of private information the average citizen holds on their personal devices. “With smart phones, tablet computers, and laptops, we carry around with us an unprecedented amount of sensitive personal information,” Fakhoury said. “That smart phone in your pocket right now could contain email from your doctor or your kid’s teacher, not to mention detailed contact information for all of your friends and family members. Your laptop probably holds even more data — your Internet browsing history, family photo albums, and maybe even things like an electronic copy of your taxes or your employment agreement. This is sensitive data that’s worth protecting from prying eyes.”

Of course, basic password selection and management is a fundamental starting point we often overlook. As the computer experts advise, choose your passwords carefully and change them often. Our laptops and smart devices also have geolocation capability, meaning our very movements can be recorded and abused, a point well explained by the Australian Privacy Foundation. This has serious implications for any meetings or communications we might have with confidential sources for our blogs or reporting.

As the Pew Research Center reported in 2011, more than half of people online had uploaded photos to be shared with others. As facial recognition (‘tagging’) is combined with geolocation capabilities, it means we are leaving a digital footprint via our images. That seem fine when we are just sharing an image with our small circle of friends on Facebook, but our ‘friends’ might choose to download and forward them and, depending on our privacy settings, these photos might well be viewable to the outside world.

Despite  whistleblower protection laws and shield laws, confidential sources face lengthy jail terms in most countries if they reveal state secrets because officials might not agree there was an ethical or public interest in the material being revealed. That was certainly the case with one of the most famous whistleblowers of the modern era – the military analyst Daniel Ellsberg who leaked the sensitive ‘Pentagon Papers’ about the true story of the US involvement in Vietnam to the press in 1971. Despite government efforts to stop the publication of the material, the Supreme Court allowed the New York Times and the Washington Post to go ahead with its release. Ellsberg and a co-accused later faced charges of conspiracy, theft of government property and espionage which were dismissed among allegations of FBI wiretapping.

Bernstein and Woodward operated using document drops at park benches and secluded places, coded phone messages and convoluted taxi rides to face-to-face meetings with Felt. In the modern era it is even harder to protect communications against detection by the authorities so you need to take extraordinary steps if you hope to keep your sources truly confidential. The international whistleblowing organisation Wikileaks became famous for revealing the 21^st century equivalent of the Pentagon Papers when it released thousands of secret US government files on the Middle East conflicts and broader diplomatic relations throughout 2010 and 2011.

It reassured sources that its high security encrypted submission system using an electronic drop box protected their identity. US soldier Bradley Manning was arrested in 2010 and held in solitary confinement pending trial over the release of the classified material. CNN interviewed several experts about the spate of similar sites to Wikileaks who warned whistleblowers to examine their protocols very carefully if they wanted their identities to remain secret after the authorities discovered the leaks. Some reserved the right to disclose leakers’ identities if subpoenaed to do so.

Reporters, bloggers and citizen journalists should pay heed to the fact that their colleagues have served jail time throughout the world for either leaking secrets or refusing to name their off-the-record sources in court. Equally important are the measures you take to protect their identities in the first place.

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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.

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.