Explainer: Journalist’s Privilege – shield law

20 December 2012

Written by: Steinar Ellingsen

Disclaimer: This is an explainer piece only, it is in no way legal advice. It is intended to help journalists understand the law better. Please consult a lawyer if you want legal advice.

Background to the journalist privilege

Currently in Victoria, there is no explicit legal protection provided to journalists who do not want to reveal the identity of their sources. As a result of this, journalists often face an ethical dilemma when they are legally forced to reveal a source. On one hand, the journalist has an ethical obligation to not reveal the source, but on the other hand, the journalist faces contempt of court and severe punishment, including imprisonment, if they refuse. An oft-cited example of this occurred when Herald Sun journalists Michael Harvey and Gerard McManus were held in contempt of court and subsequently fined when they refused to reveal their sources.

However, this is all about to change. The Evidence Amendment (Journalist Privilege) Bill 2012 has received assent and is set to come into operation on January 1, 2013, if not proclaimed earlier. The Bill introduces a new journalist privilege or ‘shield law’, by amending the Evidence Act 2008. The Evidence Act 2008 is a Victorian Act that has equivalents in several other jurisdictions, which are largely uniform with some slight variations. The journalist privilege, up until now, has been present only in the NSW and Commonwealth Acts. The Victorian privilege represents the third addition to Australia’s suite of journalist privileges, although it differs in a number of respects to the NSW and Commonwealth versions.

The following are links to the key, primary documents:

Is the person providing you with information an ‘informant’?

The first threshold to claiming the privilege is that you, as a journalist, source must fall within the definition of ‘informant’. The definition of ‘informant’ may seem straightforward at first glance, but two relevant points should be noted.

Firstly, the informant has to give information to you ‘in the normal course of [your journalistic] work’. Thus, all journalists should be wary when they receive information either:

(a)   in a non-journalistic capacity – such as performing a second job; or

(b)   in their private capacity.

A journalist who, for example, publishes information provided by their spouse will not be afforded the protection of the new privilege.

Secondly, a person is only an ‘informant’ if they have given information to you ‘in the expectation that the information may be published in a news medium’. Therefore, there must some kind of anticipation, expectation, or belief that the information may be published. Trivial gossip might be so mundane as to preclude your source from legitimately being considered an ‘informant’.

Are you considered a journalist?

The second threshold to claiming the privilege is that you are in fact considered a ‘journalist’ under the amended Act. The scope of who is a ‘journalist’ is often controversial, and three key points can be made about this definition.

The first requirement is that you must be ‘engaged in the profession or occupation of journalism’. Notably, you don’t have to be ’employed’ but simply ‘engaged’. Therefore, freelance journalists are not excluded from the definition of ‘journalist’ even if they are perennially unemployed.

The second limitation is more significant than the first: to be a journalist, you must be engaged in the ‘profession or occupation of journalism’. Because of that strict high water mark, most commentators agree that it is unlikely that amateur bloggers or users of social networking sites are caught by this definition, as they are generally not engaged in a ‘profession or occupation’. Furthermore, the Explanatory Memorandum, which is critical in the Bill’s interpretation, states clearly that the definition of journalist was not intended to cover amateur bloggers or users of social networking sites.

The fact that amateur bloggers are excluded from the Victorian definition is made explicit by comparison with the Commonwealth Act that requires that you are ‘engaged and active in the publication of news’. There is no requirement of being engaged in a ‘profession or occupation’. This distinction may nevertheless be relevant for Victorian bloggers who become involved in federal investigations (in which case the Commonwealth Act will apply).

Notably, Greens Senator Sue Pennicuik did try in parliament to have the definition of the word ‘journalist’ broadened to be more akin to the Commonwealth definition – and therefore include bloggers – but she was unsuccessful.

Finally, the court must consider a non-exhaustive list of factors in determining whether a person is ‘engaged in the profession or occupation of journalism’. In truncated form, these are:

  • the proportion of time the person spends preparing newsworthy content, as well as comment, analysis and opinion;
  • whether that information, comment, analysis and opinion is in fact ultimately published; and
  • whether the person is accountable to comply with professional standards or codes of practice.

When does the privilege apply?

Once the two key definitional requirements above are satisfied, what needs to be done in order for you to actually claim the privilege?

The operative provision of the amended Act will require, generally, that three prerequisites are met. Firstly, you, the journalist, must make a promise to your source, the informant. Secondly, the promise must be made ‘in the course of [your] work’. Lastly, the content of your promise must be that you will not disclose their identity.

Together with the definition of ‘informant’, the phrase ‘in the course of your work’ confirms that you must have made the promise whilst performing journalistic functions. This test is comparatively quite strict in Victoria, as the phrase is absent from the NSW and Commonwealth Acts. A final point worth noting is that you – or your employer – can claim the privilege.

The public interest exception

Even if all of the above is satisfied, there are exceptions that can prevent the application of the privilege. The key exception is the public interest exception. For the court to require disclosure, it must engage in a balancing exercise. The court must weigh the public interest in disclosing the identity of the source against any adverse effect on any person by the disclosure. Clearly enough, the ‘person’ who will most often suffer the adverse effect will be the journalist or the informant. However, it may also extend to other people, such as members of the journalist’s organisation. The court must also consider the public interest in ensuring that high quality news reporting is not discouraged by journalists who fear the privilege will frequently be overturned.

There are a number of things the court will consider before deciding if the balancing exercise is satisfied. In particular, the context of court proceeding will be critical. For example, if the proceeding relates to a matter of national security or terrorism, then the court would most likely rule that the privilege not apply because of the potentially high probative value of the identity of the informant and his or her evidence. In contrast, if the proceedings concerned a charge for petty theft or something similar, then the privilege would most likely apply because of the relatively trivial or inconsequential nature of the identity of the informant and the information that he or she could provide.

Finally, it may also be noted that a party must apply for an order to be made. That is, the court cannot enforce the order on its own accord.

Other specific exceptions to the privilege

Although it will not arise frequently, you should bear in mind that there exist a number of other specific exceptions to the new privilege. In general, these all relate to situations in which a statutory body is exercising certain powers, and there is a strong policy imperative to identify the relevant informant in question. For example, when the Independent Broad-based Anti-corruption Commission or Office of Police Integrity are carrying out investigations under their empowering Acts, the privilege will generally not apply to journalists from whom they seek to compel information.

Maxwell Finch is a third year Bachelor of Journalism student at La Trobe University.