Little protection of journalists sources
The common law has never been friendly towards journalists nor given them any special recognition as a profession. Although it is their daily task to write and have their stuff published, the common law has not accorded them any protection for the consequences of their vocation.
As Lord Shaw was to say famously in an early Privy Council case "it is a time-worn fallacy that some kind of privilege attaches to the profession of the press".
Thus it has been an enduring source of complaint from journalists that the courts do not understand them or their work. For example, Sir William Goodhart QC began his article in the New Law Journal on the Goodwin case (a cause celebre which is discussed later) with this provocative observation:
"There are few groups in our society who detest each other more than judges and journalists. Judges regard journalists as irresponsible hacks who ignore the truth if it interferes with a good story. Journalists regard judges as remote authoritarians, cocooned from real life in the panelled ambiance of the Inns of Court."
This attendant tension between the press and the courts is, of course, seen mostly in countries like the United Kingdom, the United States, Australia and India (to name a few) where a strong press has had its conduct called into question often in the courts.
It is less so, if not non-existent in developing countries like Malaysia, where press accountability in the courts, if at all, is largely confined to the criminal law in relation to possible offences under the Printing Presses and Publications Act, 1984 or in the area of contempt law. Rarely, if at all, has there been challenges in the more rarefied areas of press life like seeking disclosure of journalists' sources.
All who believe in a free press would agree that a free flow of information is vital in a democratic society and that protection of sources is fundamental to its attainment. As Professor David Flint, chairperson of the Australian Broadcasting Authority and former chairperson of its Press Council observed: "Confidential sources are fundamental to the very concept of journalism. Without the guarantee of protection, fear of exposure will cause dissidents to communicate less to trusted reporters. And fear of accountability will cause editors and critics to write with more restrained pens."
Common law failure
However, in spite of the obvious recognition of this virtue, the common law has failed to give protection per se to journalists' confidentiality. It has instead required the courts each time to do a balancing exercise between freedom of expression and the interests of justice in a given case when deciding whether to order a journalist to disclose his or her source.
The rationale for this approach is the established position at common law that save in the recognised categories of special privilege, namely, husband-wife communication, legal professional privilege and state secrets, there is no privilege to refuse to answer questions arising out of any other confidential relationship.
In the result the absence of safeguards at common law had subjected journalists to peril in several cases where attempt was made to protect the confidentiality of their sources. Indeed this task is a journalistic ethic. Often it is expressly written into the journalists' domestic code. In Australia it is found in clause 3 of the Code of Ethics of the Australian Journalists Association, which says: "In all circumstances they shall respect all confidences received in the course of their calling."
The British code of conduct of the NUJ says simply: "A journalist shall protect confidential sources of information".
How is this mandate to be reconciled with the general absence of protection?
There are generally recognised to be three situations in which a journalist may be subjected to a call to disclose his or her source of information. They are:
- A journalist may be called as a witness before a court or tribunal or investigatory agency (such as a Royal Commission) and asked questions which go to the identity of her or his source;
The peril at common law therefore is that a journalist who refuses to disclose his or her source when ordered by a court or tribunal to do so, risks a charge of contempt with the possible punishment of imprisonment.
It happened in the Mulholland case, where two journalists were imprisoned for periods of six months and three months respectively for refusing to give evidence before a tribunal. The Court of Appeal had ruled there was no journalistic immunity over disclosing sources.
Shield laws
Australia has had the same experience. In the last decade there have been at least six cases where journalists have been cited for contempt and either fined or imprisoned for refusal to reveal sources.
The most recent was the case of Deborah Cornwall in 1993 who refused to disclose to the Independent Commission Against Corruption the name of a senior police officer who had given her information about the murder of a woman said to be relevant in relation to allegations of corruption against police officers. The commissioner had ruled that the source was relevant. Upon refusing to make disclosure, Cornwall was handed down a two-month suspended jail sentence and ordered to do 90 hours of community service.
In the US, 28 states have enacted what are called "shield laws" to protect journalists' sources. The laws vary from state to state but generally offer greater protection than present at common law or under US case law.
It begins with giving complete protection against disclosure with certain recognised exceptions statutorily built in. For example, under the Pennsylvania model, only confidential information is protected. Once the information is published, the protection ceases. Further if the reporter reveals the confidential information to other people, the information loses its confidential status. Libel cases are a recognised exception, although this is not the rule in other states.
In 1980, New Zealand amended its Evidence Act to provide a general discretion to the court to excuse a witness from answering questions or producing documents that would breach a confidence arising out of a special relationship. Section 35 spells out the guiding factors such as significance of the evidence, nature of the confidence, and likely effect of the revelation on the confidant or any other person before disclosure could be ordered.
There is a proposal to the Parliamentary Senate Committee for Australia to adopt a shield law that seems to amalgamate the US and New Zealand models. The preferred model is the proposal from Western Australia that protects confidential sources generally but sets out guidelines for the courts to have regard to before disclosure is ordered.
There has been little focus on this subject in Malaysia reflecting a general unawareness of the importance of journalists' confidentiality. For example, there has not been any case in court that has considered the time-honoured common law rule called "the newspaper rule" regarding protection of the source of the alleged libel in a defamation case.
The rule is to the effect that in defamation actions a defendant who is a newspaper publisher or editor should not be compelled in interlocutory proceedings to disclose the name of the writer of the article or the source of information on which the article was based.
Statutory protection
In India, for example, disclosure was refused in a case applying "the newspaper rule" at common law to say that the action in libel was complete as against the newspaper without having to discover the name of the informant by way of interrogatories. Should the occasion arise, there is no reason why "the newspaper rule" should not likewise apply in Malaysia.
As regards to statute law, there is no specific protection under any statute for newspaper confidentiality. The provisions of the Evidence Act do not protect communications other than as between husband/wife, attorney/client and state secrets.
There is a reluctance by the courts to depart from the statutory exceptions to enlarge the categories to include other forms of confidential communication although confidentiality may exist in practice in other circumstances as well.
In the absence of statutory protection, the common law rule relating to evidential relevance and the necessity of names and sources to be revealed from that standpoint would be the only safeguard. This is an evidential rule applicable to every case, namely, that only evidence which is relevant is admissible in any case.
The rule would cover pre-trial discovery as well. Names and sources should not be ordered for discovery merely to satisfy the curiosity of the plaintiff but only where it is relevant and material for the prosecution of the case. At the trial the general test of relevancy under Section 136 of the Evidence Act and other related provisions would empower the court to maintain the balance between unnecessary disclosure and the interests of justice.
However, for the future, the journalist profession would have to ask itself at some time whether it is sufficient to leave the question of disclosure to be decided on a case by case basis entirely at the court's discretion, or should not law reform move towards some form of statutory protection. Since information is the life blood of a free press, and a free flow of information vital to a democratic society, the growth of press freedom in the years to come would necessitate a re-evaluation of the present situation.
A good starting point is to adopt something akin to Section 10 of the UK statute where the "necessity" test is statutorily mandated. Its application in cases like Handmade Films and X v Y, where the request for disclosure failed, demonstrates truly that the test is "necessity, and not expediency or desirability".
It does suggest strongly that if the proper balance is struck by the courts one could actually keep the cake and eat it; have both justice served and press freedom kept.
CYRUS V DAS is president of the Commonwealth Lawyers Association and past president Malaysian. The above is an abridged version of a speech given at the joint Bar Council and National Union of Journalists seminar on "Journalists, Press Freedom and the Law" on May 10.
