Journalists' sources - protection in the spotlight?

The issue of disclosure of journalists' confidential sources has been in the spotlight lately as result of the Peter Doone defamation saga.

This story began when the Sunday Star-Times published an article concerning statements allegedly made by the former police commissioner when his car was stopped by a police patrol in 1999.

When Mr Doone subsequently brought defamation proceedings against the newspaper, Prime Minister Helen Clark provided a brief of evidence for use in the proceeding.

Subsequently it was revealed that she had been a source for this story. As a result, a debate has ensued about the disclosure of journalists' confidential sources.

The law

There is no absolute legal right for journalists to keep their sources confidential. A judge does have the power to excuse a witness from answering any question or producing any document on the basis that it would be a breach of confidence (section 35 Evidence Amendment Act (No 2) 1980).

In deciding whether to exercise this discretion, the judge must consider whether the public interest in the preservation of confidences and the encouragement of free communication outweighs the public interest in disclosure. 

In conducting this balancing exercise, the judge is to consider the likely significance of the evidence to the issues in the proceeding; the nature of the confidence and the special relationship between the confidant and the witness; and the likely effect of the disclosure on the confidant and any other person.

In addition, the High Court Rules provide that where a defendant pleads honest opinion or privilege as a defence to a defamation proceeding, no interrogatories as to a defendant's source of information or grounds of belief are allowed, except where necessary in the interests of justice.

Although there is no absolute right to protection, courts have recognised the importance of the principle that news media should not be compelled to reveal their sources. In each case, the court will weigh up the factors in favour of disclosure against the factors in favour of protection.

A recent case on the issue is R v Cara 2 June 2004, Potter J, HC Auckland, CRI 2004-004-006560. The Court had to consider whether the New Zealand Herald could be compelled to give evidence that would reveal its sources for a story about alleged Israeli spies.

The competing public interests that had to be weighed up were the recognition that journalists' sources may require protection to ensure that the flow of information on which freedom of speech relies is not curtailed; and the importance of ensuring a trial.

The judge concluded that requiring the Herald to reveal its sources was not relevant or essential to ensuring a fair trial for the accused but could place press freedom at risk.

In a leading House of Lords decision on the issue, Ashworth Security Hospital v MGN Limited [2002] UKHL 29, the Court noted that any disclosure of a journalist's sources had a chilling effect on freedom of the press. Therefore, courts would normally protect journalists' sources from protection and limitations on this would merit careful scrutiny by the courts.

Disclosure of a source was ordered in this case because of the exceptional circumstances. The article in question contained extracts from the medical records of a hospital patient and disclosure of patient records was thought to increase the difficulty and danger associated with the care of patients at the hospital.

To deter similar wrongdoing in the future, it was essential that the source was identified and punished. Disclosure was therefore proportionate and justified.

As well as the legal question of the extent to which a journalist can protect a source, there are also ethical considerations. For example, Principle 4 of the Press Council Principles provides: "Editors have a strong obligation to protect against disclosure of the identity of confidential sources. They also have a duty to take reasonable steps to satisfy themselves that such sources are well informed and that the information they provide is reliable".

Reform

The proposed Evidence Bill contains a provision that would specifically allow journalists to keep their sources confidential. Clause 64 provides that if a journalist has promised a source that their identity will not be disclosed, neither the journalist nor their employer can be compelled in a civil or criminal proceeding to answer any question or produce any document that would disclose the identity of the informant or enable that identity to be discovered. 

A judge may overrule this protection if satisfied that the public interest in the disclosure of evidence of the identity of informant (including a criminal defendant's right to present an effective defence) 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 in the ability of the news media to access sources of facts.

Although clause 64 would not make protection of journalists' sources absolute, it does start from the position of protection, and requires a judge to specifically order that the protection not apply.

The Bill had its first reading on 10 May 2005. Submissions can be sent to the Justice and Electoral select committee until 12 August 2005.