Can journalists really promise anonymity to their sources? - Publishing

Investigative journalists rely heavily on their ability to attract and retain the trust of their sources. But can they really promise them anonymity?

Whether a journalist's sources have information about politicians, their policies (or any other information they would prefer goes undiscovered), they will typically only communicate with journalists who promise to keep their identities a secret. The consequences of a journalist failing to uphold such a promise could lead to the end of careers, or worse.

It is often considered that the protection of a source's identity adds to a 'healthy democracy',¹ in that it allows for the free-flow of 'inconvenient truths' which politicians, business people and other powerful members of society would prefer to remain secret.

However, any privilege comes with the antecedent risk that it may be used by informants to grind axes against enemies without fear of retribution. The task of finding the balance, of course, rests with the journalist.

WHEN COULD A RISK TO SOURCE'S ANONYMITY ARISE?

The risk to a source's anonymity typically arises when the subject of an article or news report commences proceedings against a publisher (and typically also the journalist) in defamation.

If the publisher and journalist wish to rely on the defence of 'qualified privilege' (one of the elements of which requires proof that the publisher 'acted reasonably'), a tension will arise as to whether it is appropriate for the Court to order the journalist reveal the identity of her source so the plaintiff can assess whether there are any bases on which to oppose the qualified privilege defence.

Until recently, however, Australian law provided for the protection of a journalist's sources only in very limited circumstances. Further, recent changes to laws protecting the confidentiality of journalists' sources do not apply uniformly across Australia.

In this article, we investigate the two sources of a Court's power to protect the identity of a journalist's sources. In our accompanying case analysis article, " The statutory 'journalists' privilege': Has it done enough to protect journalists from being obliged to disclose confidential sources?", we consider two recent decisions which highlight the stark difference between the level of protection provided by the 'newspaper rule' and statutory 'journalists' privilege'.

THE NEWSPAPER RULE

Traditionally, journalists who sought to protect the confidentiality of their sources were required to resort to a 'rule of practice' known as the 'newspaper rule'.

The operation of this rule was explained by the High Court of Australia in John Fairfax & Sons Ltd v Cojuangco (1988) (1988) 165 CLR 346 (Cojuangco). As Mason CJ, Wilson, Deane, Toohey and Gaudron JJ explained:

"In effect, the courts have acted according to the principle that disclosure of the source will not be required unless it is necessary in the interests of justice. So generally speaking, disclosure will not be compelled in an interlocutory stage of a defamation or related action and even at the trial the court will not compel disclosure unless it is necessary to do justice between the parties" (emphasis added).²

Relevantly, under this rule, the plaintiff was required to establish that disclosure was necessary to provide the plaintiff with an 'effective remedy'.³ This could be affected by the defences pleaded to a claim⁴ and, in particular, the defence of qualified privilege. Where a plaintiff faced with a defence of qualified privilege will require details of those sources to challenge the reasonableness of the defendant's reliance on those sources, the newspaper rule would typically yield in favour of disclosure.

STATUTORY JOURNALISTS' PRIVILEGE

In 2012, the Victorian parliament passed the Evidence Amendment (Journalist Privilege) Act (Vic) 2012 (the Journalist Privilege Act). The Journalist Privilege Act was introduced to 'strengthen...the capacity of journalists to maintain the anonymity of their sources'.⁵ As described by then Victorian Attorney-General Robert Clark, the privilege introduces a 'rebuttable presumption that a journalist is not compellable to give evidence that would disclose the identity of their source'.⁶

These protections can be found in section 126K of the Evidence Act (Vic) 2008. If a journalist has promised an informant that they will not disclose their identity, the journalist (or their employer) is not compellable to give evidence that would disclose the identity of the informant.⁷ The court retains a discretion to compel a journalist to disclose its informant's identity if, having regard to the issues in the proceeding, it considers that the public interest in the disclosure of the identity of the informant outweighs:

any likely adverse effect of the disclosure on the informant or any other person; and
the public interest in the communication of facts and opinion to the public by the news media and the ability of the news media to access sources of facts.⁸

Statutory journalists' privilege (which provides similar protections to journalists and their sources) has been enacted in various other jurisdictions, including the Commonwealth, NSW, the ACT and WA.⁹ It should be emphasised that the privilege only applies to professional journalists¹⁰, and not to casual bloggers or social media users.

The contrast in protection afforded to journalists by the newspaper rule and by section 126K can be seen in the differing approaches taken by the Supreme Court of NSW in Liu v The Age (prior to the passage of s 126K) and by the Supreme Court of Victoria in Madafferi v The Age.

Our analysis of these two decisions makes plain that s 126K increases the protection for journalists and their informants, and gives better legal protection to the confidentiality undertakings that journalists so often provide to them.

However, the fact remains that the s 126K privilege fundamentally changes the nature of applications to compel disclosure of a journalist's source. Section 126K creates a privilege that operates automatically. If it is to be defeated, an application must be made and proven by the party seeking orders that 'overrule' the privilege. By comparison, the newspaper rule was a loosely applied procedural doctrine, and was easier to overcome as a consequence.

The stronger, substantive basis for the privilege created by s 126K should, going forward, serve to better protect journalists and their confidential sources. However, it should not be forgotten that, in the event a subject sues for defamation, a decision to protect a source may create material difficulties in defending a story.

This was a contributing factor in Rebel Wilson's recent win against Bauer Media in relation to an article published by Woman's Day. Bauer published its article, which accused Ms Wilson of lying about her real name, her age, and her family upbringing, on the back of information given by a former classmate who wished to remain anonymous. Without the benefit of the source, Bauer could not sustain a qualified privilege defence. This is because the jury could not see the classmate give evidence, and thus would not have been able to reach any conclusions about whether Bauer acted 'reasonably' in relying on her.¹¹

WHAT ABOUT OTHER JURISDICTIONS?

As noted above, the s 126K privilege only exists in relation to actions brought in Victoria, NSW, WA, ACT and The Federal Court.

Although yet to be judicially tested, it would appear to operate as a rule of practice, meaning that the privilege only applies in the jurisdiction where the action is brought. This will have an impact where, for example, a journalist undertakes to keep a source confidential in South Australia, and later faces a defamation action in Victoria (or vice versa).

It is unclear whether the privilege would, in either situation, still apply.

Footnotes

¹ Evidence Amendment (Journalists' Privilege) Bill 2012, Explanatory Memorandum, 3.

² John Fairfax & Sons Ltd v Cojuangco (1988) (1988) 165 CLR 346, [354]-[355].

³ Madafferi v The Age Company Limited [2015] VSC 687, [30].

⁴ Ibid, [31].

⁵ Evidence Amendment (Journalists' Privilege) Bill 2012, Explanatory Memorandum, 1.

⁶ Ibid.

⁷ Evidence Act 2008 (Vic) s126K(1).

⁸ An order by the court under s126K(2) may be made subject to such terms and conditions (if any) as the court thinks fit.

⁹ See Evidence Amendment (Journalists' Privilege) Act 2011 (Cth), Evidence Amendment (Journalist Privilege) Act 2011 (NSW), Evidence Amendment Act 2011 (ACT) and Evidence and Public Interest Disclosure Legislation Amendment Act 2012 (WA).

¹⁰ 'A person engaged in the profession or occupation of journalism in connection with the publication of information, comment, opinion or analysis in a news medium'

¹¹ Richard Leder and Sanjay Schrapel acted for Rebel Wilson.

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