The identity of sources
Of particular relevance to journalists is the section of the ASIO Act providing for gaol terms of up to five years for refusing to answer questions about certain matters. This issue goes to the heart of a journalist’s rights and responsibilities to preserve the confidentiality of a source’s identity, a crucial dimension of freedom of the press (Bacon and Nash, 1999). Unless the press can protect the sources of its information from retribution, its capacity to research and report on matters against the will of government and other powerful organizations is effectively weakened. It’s not difficult to foresee a situation in which a journalist might wish to preserve the confidentiality of a source relating to what s/he perceives as a political matter that a security agency might construe as related to potential terrorism.
Shield laws
Precisely this situation arose in a succession of US cases from the 1960s and 70s where the Supreme Court developed its approach to the confidentiality of sources under the First Amendment, when the FBI was pursuing journalists to reveal information about the Black Panthers, a militant and armed African-American organization. The US law (both statutory and common) recognising a right of journalists to preserve the confidentiality of sources has developed considerably in the last few decades, but even so the Supreme Court has held (in Branzburg v Hayes 408 US 665 (1972)) that this right is not mandated by the First Amendment, nor when it does exist does it imply an automatic privilege to preserve confidentiality (Chesterman, 2000: 162). Some Australian and US state legislatures have enacted so-called ‘shield laws’ recognising more or less limited rights to confidentiality, and the torts of contract have been used in some cases to uphold an agreement to preserve confidentiality.
Of course, it is not surprising that the three separated locations of government power—the legislature, executive and courts – are ambivalent about recognising and extending a power that constitutes itself in defiance of their own. In declining to identify their sources when ordered to do so by a court, journalists lay claim to a relationship to the ‘public right to know’ that precedes in principle the formation of the state and the rights of any government. Even the limited Australian recognition of an implied right to freedom of political communication acknowledges the pre-existence of a public with a right to free communication flows via the media. This principle explains why journalists are reluctant to acknowledge any right by legislature or court to enact or invoke ‘shield laws’—it would undermine their argument that their rights pre-exist the formation of government, and so shift the terrain on which they are contesting their case. Given the paucity of constitutional protection in Australia, this battle over the structure of the terrain has particular importance.
Martyrs to free speech
In Australia, the various shield laws have not been invoked by journalists to date, and conversely recognition by the courts of the so-called ‘newspaper rule’ has been limited. In a review of its code of ethics during the 1990s the Australian Journalists Association considered diluting the obligation to maintain confidences in all circumstances (Chadwick, 1994) but decided against doing so. In the 1990s judges were willing to sentence journalists to gaol or community service orders for refusing to disclose the identity of their sources. Nonetheless, journalists and publishers continue to assert their rights to do so, which places plaintiffs and the courts at risk of constructing journalists as martyrs to free speech if they impose penalties for doing so.
Accountability
Confidentiality of sources is meant to protect weak and powerless sources of information from retribution. In fact, unnamed sources are now a staple in parliamentary press gallery reporting. Powerful politicians speak ‘off the record’ to avoid taking responsibility for assertions they are making. In these circumstances the confidentiality principle arguably subverts the accountability of government, the very position it is intended to buttress. Journalists, by the way in which they use the right to protect sources, are undermining the political relationship with the public that constitutes the essence of their professional role in a democracy. It’s an instructive example of how the way in which protagonists conduct themselves in a contest can change the terrain on which future protagonists will have to fight—in this case one in which the media can be seen as part of the problem of the unaccountability of power, rather than part of the remedy.
Whistleblowers
A complementary aspect of the vulnerability of sources is the protection of whistleblowers. Whistleblowers almost always come to personal and professional grief as a result of the public stand they take against their employer (Lennane, 1995; Dempster, 1997). There is whistleblower protection legislation in some States but it affords little protection from the personal and professional catastrophes most whistleblowers suffer. Whistleblowers Australia recommends that those contemplating taking a dissident stand against their employer on an issue of principle should think long and hard before doing so, and if they decide to proceed should not trust internal complaint mechanisms, should gather as much documentary evidence of their allegations as possible and then take a very public stand through the media (Lennane, unpublished paper). This advice is an affirmation of media power, and of the profoundly conflictual basis of public affairs. The contrasting experiences of two whistleblowers/media sources in the debate about the justification for the 2003 invasion of Iraq—Andrew Wilkie in Australia and David Kelly in the UK—illustrate the range of consequences that confront whistleblowers.
From: Chris Nash, Freedom of the Press in Australia contribution to The Democratic Audit conducted by Political Science Program in the Australian National University's Research School of Social Sciences to assess Australia's strengths and weaknesses as a democratic society.
