Democracy demands shield laws for journalists
Should journalists be required to reveal their confidential sources to the courts?
Submitted as assessment for JRN2006 Media Law & Ethics
One in five Australians think journalists hold high ethics, marginally above public opinion of politicians (Roy Morgan 2017). Paradoxically, the public rallies the media as their tribune (Hirst 2013) – to alert them to harm and redress their injustices. To do this, journalists routinely depend on confidential information received from whistleblowers or undercover sources. For example, one tip-off led to the British navy saving the lives of a Russian mini-submarine crew following Russia’s initial denial it was sinking (Banisar 2007). ‘Deep Throat’ humiliated the Nixon government in leaking information to WashingtonPost journalists’, Bob Woodward and Carl Bernstein. Dubbed the ‘Watergate’ scandal, it forced President Richard Nixon’s resignation. An anonymous source may yet take down another American president with a recent op-ed published in The New York Times; the insider vowed to “thwart” parts of the president’s agenda and his “worst inclinations” (2018, p. 1). This essay examines four such cases of state leaks to argue journalists should not be compelled to reveal their source when they have served their democratic, watchdog function. In doing so, it questions whose interests the courts are serving when disclosure is determined to be in the public interest.
Exposing the powerful carries indisputable risk; an identified informant could be sacked, ostracised, arrested, prosecuted, sued, jailed, injured or even killed (Fernandez & Sadler 2010). Journalists’ knowledge of the informant also places them at risk, as was the case for Irish journalist, Suzanne Breen; she received a call from the IRA claiming responsibility for the murder of two British soldiers (Fernandez & Sadler 2010). The recent murder and dismemberment of dissident journalist, Jamal Khashoggi, at the Saudi consulate in Instabul, is drawing worldwide controversy and diplomatic tension; there are suspicions the crown prince ordered the execution, an allegation denied by Saudi Arabia’s foreign minister (Australian Broadcasting Corporation 2018; BBC 2018). These risks demonstrate why source protection is given to embolden sources to supply information about corruption, abuse, maladministration or incompetence by governments, organisations and corporations (Banisar 2007).
Protecting a source’s identity not only builds trust in the journalist but it is also, as The Age described, a “bright-line rule in journalism. It is embedded in our code of conduct and ingrained in every facet of how good journalists go about their business” (2015, p. 1). But ethical codes, enshrined in the Media, Entertainment and Arts Alliance’s [MEAA] Code of Ethics  for example, are not law (Pearson & Polden 2015). Thus, journalists are faced with legal and ethical dilemmas when court-ordered to divulge their sources.
There is some agreeance among chief justices, politicians and international law that source confidentiality can be vital for information flow to journalists (Banisar 2007; International Legal Research Group 2016; Fernandez & Sadler 2010). Source protection, known as qualified privilege or more commonly, shield law, is legislated under the Evidence Act1995in addition to Acts in all nine jurisdictions bar Queensland (Sarre 2018). Though, as Media Watch(2011) criticised, statutory shield laws were not worthy of their name until the Evidence Amendment (Journalists’ Privilege) Act 2011 came into effect.This amendment meant journalists cannot be compelled to disclose their source unless the court determines the public interest in their identification outweighs:
“(a) any likely adverse effect of the disclosure on the informant or any other person; and (b) the public interest in the communication of facts and opinions to the public by the news media and, accordingly also, in the ability of the news media to access sources of facts” [sec 126H.2].
Yet, how the court decides what is in the public interest is an enigma, drawing substantial criticism including from Australia’s major news groups: News Corp, Fairfax, APN, SBS and ABC (Sawer, Abjorensen & Larkin 2009; Right to Know 2008; Banisar 2007; Fernandez 2014). Former Media Watch host, Richard Ackland (2016), held judges were apathetically assaulting the media’s right to honour confidentially.
Two journalists who would not disclose their source include Gerard McManus and Michael Harvey (see Harvey v County Court of Victoria (2006) VSC 293). Published in the Herald Sun in 2004, their story suggested the Federal Government proposed slashing war veterans’ benefits by $500 million. The Department of Veteran Affairs combed through thousands of phone extensions to find the whistleblower, eventually uncovering seven calls to Harvey from DVA officer, Desmond Kelly. When summoned, both journalists refused to answer questions about their source [2,10]; still, Kelly was convicted with communicating confidential information to an unauthorised person pursuant to s70 of the Crimes Act 1914 (Cth). In 2007 each journalist plead guilty to being in contempt of court and was fined $7,000 after Judge Michael Rozenes ruled they were not above the law (seeR v Gerard Thomas McManus and Michael Harvey (2007) VCC 619). Lidberg described the case as an erosion of “trust in natural justice” (2013, p. 2).
Journalists know using anonymous sources can hamper credibility, with ethical codes encouraging they first exhaust other means (Lidberg 2013). But when stories of public interest hinge on granted confidentiality, journalists have little choice. In 1990, Tony Barrass’s story in the Sunday Times alleged “tax officers were selling confidential information for as little as $20” (Pearson & Polden 2015). Barrass became the first Australian journalist to be jailed for contempt of court when he replied to the magistrate, Peter Thobaven’s, request for the source: “With all due respect, sir, no” (DPP v Luders (1989) WDCC, as cited in Law Reform Commission of Western Australia 1993).
Barrass alleges Thobaven muttered, “Seven days at His Majesty’s pleasure will give you time to change your mind” (2013, p. 1).
“I was taken from the dock, frog-marched into the bowels of the East Perth lock-up … stripped, searched (I can still hear them barking: “bend over, lift your balls!) and then put into a cell that seemed no bigger than your average shower” (Barrass 2013, p. 1).
Brought back the following year, the court again demanded Barrass give up his source, but he held firm reiterating his profession’s ethical code (LWRC 1993). Judge Kennedy responded:
“The administration of justice is of far greater importance than the journalist’s point of view … it is for you and your conscience what you have, in fact, done to Mr Luders [the discovered informant] … it seems to me that that is also a consideration for journalists; whether the damage they are likely to do to individuals outweighs any supposed benefits to the entire community” (LWRC 1993, p. 47).
Judge Kennedy convicted Barrass of contempt for a second time and fined him $10,000. Mr Luders was charged with official corruption and fined $6,000 (LWRC 1993). Reflecting on the ordeal, Barrass still refuses to name his source, maintaining, “the trust between reporter and contact was as sacrosanct as that between confessor and priest” (2013, p. 1).
Journalists are now upgrading their protections. Editor of the US Daily Herald, Randy Wright, lamented on having to destroy all unpublished notes and evidence post-publication: “A source may no longer be available, for example, or the details of an account may change” (as cited in Banisar 2007, p. 11). In the wake of Snowden and Assange, media are using encryption technology like SecureDrop to receive tip-offs, as well as encrypt their own data (UNESCO 2017; Brevini 2017; Banisar 2007). Yet, authorities are also diversifying their strategies. In the ten years post September 11, 2001, the government passed more than 50 new national security and counterterrorism laws (Brevini 2017; Ewart, Pearson & Lessing 2013). Giving authorities unprecedented powers, critics say they impinge on open justice and media reporting (Ewart, Pearson & Lessing 2013). Also controversial is the Turnbull Government’s Telecommunications (Interception and Access) Amendment (Data Retention) Act 2015, requiring telecommunication providers to collect and retain data on users for two years. A warrant is needed to access journalists’ data but the 21 criminal law-enforcement agencies can instead trace evidence through suspected contacts.
Exemplifying efforts to defy government control is Paul Farrell, Nick Evershed and Helen Davidson’s story published in The Guardian in 2016. The ‘Nauru files’ included 2,000 leaked reports containing allegations of systemic abuse, cruelty, sexual assault and suicide attempts at Australia’s detention centre in Nauru. Netting international outrage (Amnesty International 2017), the Senate launched yet another inquiry into the centre.
LNP senators, Ian Macdonald and David Fawcett, scorned the inquiry as a:
“politically-motivated public-relations stunt … designed to tarnish the success of the Coalition’s strong border protection policies by inference and hearsay,” continuing, “if stories from a media outlet are the basis of fact for the report, then this inquiry should have been abandoned completely and permanently” (Commonwealth of Australia 2017, p. 183).
However, the Committee concluded most instructive evidence had resulted from the ‘Nauru files’ and two audits (Commonwealth of Australia 2017). It is predicted the journalists will face being subpoenaed as there is little doubt the government is hunting down the leak; in 2015, Farrell uncovered evidence – albeit largely blanked – of government requests to the Australian Federal Police [AFP] to find informants who had exposed immigration matters.
In fairness, one journalist was evidently irresponsible in publishing state secrets. In 2009, The Australian journalist, Cameron Stewart, received a leak about planned AFP raids on suspected terrorists as part of counter-terrorism operation, Operation Neath (Ewart, Pearson & Lessing 2013). The editor, Paul Whittaker, approached the AFP, agreeing on when the paper would publish the information. Stewart’s scoop ended up backfiring after going to print on the morning of August 4, 2009 before the raids were scheduled to take place. Five men were arrested that day, three later sentenced to 18 years jail for plotting a terrorist attack on the Holsworthy base in Sydney (Ewart, Pearson & Lessing 2013). When court-ordered to reveal his informant, Stewart actually complied, saying he had been released from his confidentially agreement (see Director of Public Prosecutions v Simon Justin Artz (2013) VCC 56). However, Stewart’s disclosure does not support forcing journalists to identify their sources; had the story been published after the raid as intended, Stewart would not have been considered culpable of potentially foiling the raids. There is only one recorded instance of an Australian journalist identifying a source without consent – when BuzzFeed reporter, Alice Workman, revealed Michaelia Cash was lying about her office’s non-involvement in alerting the media about police raids on the Australian Worker’s Union (Workman 2018). Workman polarised the Canberra press gallery, many quick to either chastise or support her breach of ethical codes (Media Watch 2017).
Had the other journalists also revealed their sources’ identities, the ‘chilling effects’ could not arguably be in the public interest, moreover, democratic. Chill is already felt by journalists and potential informants from government surveillance, data retention and counterterrorism and national security laws (Posetti 2017; UNESCO 2017; Banisar 2007). The government’s “aggressive” pursuit of leakers even won them a spot in Freedom House’s list of countries to monitor for press freedom (2008, p. 12). The judiciary can elaborate about the difficult balance between administering justice and fostering an open press; yet, as demonstrated, it ironically punishes journalists for exposing government injustices. Despite strengthened shield laws, the highly subjective and ambiguous concept of ‘public interest’ has allowed courts to give preferential treatment to the state.
So, in closing, here is one last absurdity: the aforementioned LNP senators, Macdonald and Fawcett, had boasted their government had removed all children from detention in their dissenting submission to the Senate’s Nauru inquiry (Commonwealth of Australia 2017, p. 184). If they had of been under oath, they would have been guilty of perjury. Eight days ago, the media revealed 6,000 doctors had backed a letter demanding the Prime Minister immediately transfer 80 dangerously ill-minors off of Nauru (SBS News 2018). This was only made possible after medical professionals were given special exempt from the definition of “immigration and border protection workers” under the Australian Border Force Act 2015 which threatens jail time for informants (Brevini 2017).
2018, ‘I am part of the resistance inside the Trump administration’, New York Times, September 5, viewed 13 September 2018, <https://www.nytimes.com/2018/09/05/opinion/trump-white-house-anonymous-resistance.html>.
Ackland, R 2016, ‘The defamation case that is bad news for journalism and the protection of sources’, The Guardian, 30 May, viewed 21 October 2018, <https://www.theguardian.com/commentisfree/2016/may/30/the-defamation-case-that-is-bad-news-for-journalism-and-the-protection-of-sources>.
Amnesty International 2017, ‘On human rights, Australia faces a stark choice’, Amnesty International, 23 February, <https://www.amnesty.org.au/human-rights-australia-faces-stark-choice/>.
Australian Associated Press 2011, ‘Journalist ordered to divulge terror raid sources’, ABC News, 11 November, viewed 23 October 2018, <https://www.abc.net.au/news/2011-11-11/court-orders-journalist-to-discuss-sources/3661014>.
Australian Broadcasting Corporation 2018, ‘Jamal Khashoggi: Saudi Arabia says case of slain journalist will be tried in Saudi court’, ABC News, viewed 22 October 2018, <https://www.abc.net.au/news/2018-10-21/khashoggi-case-to-be-heard-in-saudi-court-saudi-arabia-says/10401338>.
Banisar, D 2007, ‘Silencing sources: an international survey of protections and threats to journalists’ sources’, viewed 7 September 2018, <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1706688>.
Barrass, T 2013, ‘’Bend over, lift your balls!’: Tony Barrass on journos in jail’, Crikey, 9 April, viewed 20 October 2018, <https://www.crikey.com.au/2013/04/09/bend-over-lift-your-balls-tony-barrass-on-journos-in-jail/>.
BBC 2018, ‘Khashoggi death: Saudi Arabia says journalist was murdered’, BBC News, viewed 22 October 2018, <https://www.bbc.com/news/world-middle-east-45935823>.
Brevini, B 2017, ‘Metadata laws, journalism and resistance in Australia’, Media and Communication, vol. 5, no. 1, pp. 76-83.
Commonwealth of Australia 2017, Serious allegations of abuse, self-harm and neglect of asylum seekers in relation to the Nauru Regional Processing Centre, and any like allegations in relation to the Manus Regional Processing Centre, Report, 21 April, viewed 20 October 2018, <https://www.aph.gov.au/Parliamentary_Business/Committees/Senate/Legal_and_Constitutional_Affairs/NauruandManusRPCs/Report>.
Department of Immigration and Border Protection 2015, Determination of immigration and border protection workers, 29 June, viewed 23 October 2018, <https://www.homeaffairs.gov.au/AccessandAccountability/Documents/determination-workers.pdf>.
Evershed, N, Liu, R, Farrell, P & Davidson, H 2016, ‘The Nauru files: the lives of asylum seekers in detention detailed in a unique database’, The Guardian, viewed 15 October 2018, <https://www.theguardian.com/australia-news/ng-interactive/2016/aug/10/the-nauru-files-the-lives-of-asylum-seekers-in-detention-detailed-in-a-unique-database-interactive>.
Ewart, J, Pearson, M & Lessing, J 2013, ‘Anti-terror laws and the news media in Australia since 2001: how free expression and national security compete in a liberal democracy’, Journal of Media Law, vol. 5, no. 1, pp. 104-132.
Farrell, P, Evershed, N & Davidson, H 2016, ‘The Nauru files: cache of 2,000 leaked reports reveal scale of abuse of children in Australian offshore detention’, The Guardian, 10 August, viewed 15 October 2018, <https://www.theguardian.com/australia-news/2016/aug/10/the-nauru-files-2000-leaked-reports-reveal-scale-of-abuse-of-children-in-australian-offshore-detention>.
Farrell, P 2015, ‘Journalists reporting on asylum seekers referred to Australian police’, The Guardian, 22 January, viewed 23 October 2018, <https://www.theguardian.com/australia-news/2015/jan/22/journalists-reporting-on-asylum-seekers-referred-to-australian-police>.
Fernandez, JM 2014, ‘Journalists’ confidential resources: reform lessons from recent Australian shield law cases’, Pacific Journalism Review, vol. 20, no. 1, pp. 117-137.
Fernandez, J & Sadler, P 2010, ‘A shield law for journalists in Australia: the never ending story?’, in P Sadler (ed.), Contemporary Issues in Law & Policy, viewed 10 September 2018, <https://espace.curtin.edu.au/bitstream/handle/20.500.11937/17015/169043_169043.pdf?sequence=2>.
Freedom House 2018, Freedom of the press 2017: press freedom’s darkest hour, viewed 23 October 2018, <https://freedomhouse.org/report/freedom-press/freedom-press-2017>.
Hirst, M 2013, ‘Right to know: the ‘nation’, the ‘people’ and the Fourth Estate’, The Conversation, December 11, viewed 13 September 2018, <https://theconversation.com/right-to-know-the-nation-the-people-and-the-fourth-estate-21253>.
International Legal Research Group 2016, Final report: International Legal Research Group: freedom of expression and protection of journalistic sources, viewed 23 October 2018, <http://www.ifj.org/what/press-freedom/ethics.html?tx_wbresources_list%5Bresource%5D=260&cHash=da81ece8abe16c6984d334663da4948e>.
Lidberg, J 2013, ‘Journalists McKenzie and Baker go unshielded before demands to reveal sources’, The Conversation, 5 February, viewed 10 October 2018, <https://theconversation.com/journalists-mckenzie-and-baker-go-unshielded-before-demands-to-reveal-sources-11914>.
Media, Entertainment & Arts Alliance 2015, Media, Entertainment & Arts Alliance – journalist’s code of ethics, <http://www.alliance.org.au/code-of-ethics.html>.
Media Watch 2017, Raids, leaks and sources, broadcast transcript, viewed 23 October 2018, <https://www.abc.net.au/mediawatch/episodes/raids-leaks-and-sources/9972430>.
Media Watch 2011, Protection for journalists, broadcast transcript, viewed 20 October 2018, <https://www.abc.net.au/mediawatch/episodes/protection-for-journalists/9974320>.
Pearson, M & Polden, M 2015, The journalist’s guide to media law: a handbook for communicators in a digital world, 5th edn, Allen & Unwin, Crows Nest, NSW.
Posetti, J 2017, ‘Protecting journalism sources in the digital age’, United Nations Educational, Scientific and Cultural Organisation, viewed 20 October 2018, <http://www.ifj.org/what/press-freedom/ethics.html?tx_wbresources_list%5Bresource%5D=207&cHash=b10b56181327d853d87105d0d2335cf1>.
Right to Know 2008, Submission to the House of Representatives Standing Committee on Legal and Constitutional Affairs: inquiry into protecting whistleblowers within the Australian government public sector, August, viewed 10 October 2018, <https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=10&ved=2ahUKEwiL2Mqbl5feAhXFrY8KHfdoCl4QFjAJegQIABAC&url=https%3A%2F%2Fwww.aph.gov.au%2FParliamentary_Business%2FCommittees%2FHouse_of_Representatives_Committees%3Furl%3D%2Flaca%2Fwhistleblowing%2Fsubs%2Fsub034.pdf&usg=AOvVaw1pqkDrv2XX3nYpidtpBfa->.
Roy Morgan 2017, Roy Morgan image of professions survey, viewed 22 October 2018, <http://www.roymorgan.com/findings/7244-roy-morgan-image-of-professions-may-2017-201706051543>.
Sarre, R 2018, ‘Why shield laws can be ineffective in protecting journalists’ sources’, The Conversation, 13 August, viewed 23 October 2018, <https://theconversation.com/why-shield-laws-can-be-ineffective-in-protecting-journalists-sources-101106>.
Sawer, M, Abjorensen, N & Larkin, P 2009, Australia: the state of democracy, The Federation Press, Leichardt, NSW.
SBS News 2018, ‘Kids off Nauru letter signed by hundreds of Australian doctors delivered to PM’, SBS News, 15 October, viewed 23 October 2018, <https://www.sbs.com.au/news/kids-off-nauru-letter-signed-by-hundreds-of-australian-doctors-delivered-to-pm>.
Srivastava, R 2018, ‘Nauru is not only a political crisis, but also a medical emergency’, The Guardian, 23 October, viewed 23 October, <https://www.theguardian.com/commentisfree/2018/oct/23/nauru-is-not-only-a-political-crisis-but-a-medical-emergency>.
The Age 2015, ‘We will not be cowed by anyone’, 12 December, p. 32, viewed 22 October 2018, <http://ezproxy.usq.edu.au/login?url=http://search.ebscohost.com.ezproxy.usq.edu.au/login.aspx?direct=true&db=n5h&AN=SYD-6NI36TY2GO4XC793F2I&site=ehost-live>.
The Law Reform Commission of Western Australia 1993, Project no 90: professional privilege for confidential communications, report, May 1993, viewed 15 October 2018, <https://www.lrc.justice.wa.gov.au/P/project_90.aspx>.
United Nations Educational, Scientific and Cultural Organisation 2017, Terrorism and the media: a handbook for journalists, viewed 20 October 2018, <http://unesdoc.unesco.org/images/0024/002470/247074E.pdf>.