Are there any circumstances under which journalists should reveal their sources? The instinct in the profession is “no”. Journalism that goes beyond the media release and spin would all but die if the countless background and off-the-record conversations had by journalists each day were at risk of being made public.
Yet it is not hard to see why those not blooded in the profession of journalism are suspicious of the idea that journos, and journos alone, should be left to make judgments in the murky area of unauthorised disclosure.
It will be a while before the dust settles on the judgment of Justice Lucy McCallum in the NSW Supreme Court last week, in which she ordered Age journalists to reveal their sources for the story accusing former Defence Minister Joel Fitzgibbon of taking payments from Chinese Australian businesswoman Helen Liu.
The Age has won a stay, while it organises the inevitable appeal.
The stakes are high, and the atmosphere in court, by all accounts, rather extraordinary. Just how acrimonious this case has been is visible in some of McCallum’s comments in judgment. Such as:
“Regrettably, it is necessary in that context to say something of the conduct of counsel in this case. For reasons I do not understand, the hearing of the proceedings was attended by an unusual level of acrimony between senior counsel for the plaintiff and senior counsel for the defendants. The transcript records a number of occasions on which I implored both counsel to refrain from taking rhetorical shots at each other and to confine their attention to the legal and factual issues in the case.”
However, both parties disagreed with that assessment — in court last Wednesday Liu’s QC told the judge that he did not agree with the observations in that paragraph and The Age SC agreed with him.
Meanwhile the judgment has been discussed in legal and journalistic corridors with varying degrees of self-righteous indignation on both sides.
It is a strange judgment for the layman to make sense of. For one thing, it tells only part of the story. Why did The Age journalists think it right to publish the details of key documents behind their accusation?
From reading McCallum’s words, you might think they were reckless, particularly since Liu claims they were forged. But Justice McCallum in making this decision did not find it necessary to canvass evidence previously made public.
It is worth revisiting. Journalist Richard Baker claimed that he was told by Liu’s lawyer Donald Junn that there was a “rare truth” to the documents, and that the Labor MP was having an affair with Liu’s sister Queena. All this was reported here.
Assume that Baker’s account was accurate for the moment, and put yourself in the shoes of The Age editors faced with the decision to publish, or not publish. You have documents from a confidential source. The veracity of those documents has apparently been confirmed by the supposed author’s lawyer.
And they relate to a government minister — and not just any government minister, but the Minister for Defence, who has access to all kinds of secrets. The documents seem to suggest he is taking payments from a businesswoman with close links to the Chinese government.
Publish, or not publish? What would you do? Where does the public interest lie?
It seems pretty clear to me, even though in this case there is a suggestion the source did not want all the documents published.
Having published, you are honour bound to protect the identity of the source.
But there is another point of view, and that was advanced in McCallum’s judgement.
The Age’s defence against having to reveal its sources rested largely on the implied constitutional freedom of speech on government and political matters. This implied freedom — relatively recently developed — makes invalid any laws that unduly restrict freedom of speech on government and political matters, such that the system of government and free and fair elections laid out in the constitution is inhibited. Hence, said The Age lawyers, journalists should not have to reveal their sources because of the chilling effect on freedom of speech.
McCallum disagreed. Here is what she said on sources:
“… an absolute protection for journalists’ sources would in my view threaten the constitutionally prescribed system of government, just as would an unqualified freedom to defame people involved in government or politics.”
And later, commenting on whether sources of information on political matters should be absolutely protected:
“the existence of such an unqualified freedom to defame people involved in government or politics is inimical to the maintenance of the system of government required by the Constitution.”
And later still:
“… in my view an absolute and immutable protection of confidentiality wherever demanded by a journalist’s source (in cases of political discussion) would itself be inimical to the maintenance of the system of government required by the constitution. It would expose politicians and others involved in government and politics to the risk of false and malicious attack from their detractors without recourse or remedy. To allow such sources to shield themselves under the respectable cloak of investigative journalism would be contrary to the high ideals of a free press.”
For these reasons, and others, McCallum judged that the court rule requiring the journalists to disclose was a reasonable thing, and did not contravene the constitution.
True to their code of ethics, neither The Age as a newspaper, nor its reporters, are likely to comply with any court order on this matter.
Journalists work in the area of the unauthorised disclosure. We recognise it to be so, yet suggesting that such work should be in some way legislatively authorised or recognised is almost a contradiction in terms.
Yet the Liu case is likely to lead to the whole thing ending up before the High Court, at which stage it will become a precedent of national and international significance on how media organisations and journalists do their edgy, essential jobs.
It is a shame that journalists defending their ‘rights’ start by assuming that all members of their self-regarding band display high skill and integrity, in pursuit of noble purpose. Should sources be protected? Well of course. After all, in certain crucial situations, even if not this one, some journalists, even if not this one, could be about to expose some great wrong. Oh really?
The fact that so much journalism in this country is lazy and tawdry, that so little speaks truth to power, is overlooked.
The public do not make that mistake. Chat amongst yourselves on the barricades. No-one else will be there. And we’re all the worse for it.
“It was clearly indicated, so far as at least one of the sources was concerned, that the handwritten papers had been included inadvertently among the documents sent. A request was made on that basis not to publish those papers. Contrary to that request, The Age published details of the handwritten papers on its front page.
The newspaper’s decision to use the handwritten documents in the face of requests from the contact not to do so had the tendency, in my view, to undermine the very protection sought to be achieved by the practice of not requiring journalists to disclose their sources unless such disclosure is necessary in the interests of justice. ”
This is hardly a black and white case of journalistic ethics and I hope commentators acknowledge that when the case proceeds.
This is the exact reason journalists and newspapers aren’t trusted these days.
“An undisclosed source” or “Someone close to” is abused way too often in today’s media just so they can bash a politicians or create some sensational headline. It’s a cop-out from real journalism.
And if the News of the World had to disclose it’s sources the phone hacking never would have happened (or at least they would have then actually investigate the info to find a different/legit way to disclose it).
Truth in advertising rules should be applied to journos too, maybe then people might start trusting their news again…
Who is and is not a journalist ? Is employment by a person who owns a printing press the criterion ? Should syndicated columnists be treated any differently from the citizen blogger and when do you draw the distinction ?
I’ve always preferred the position that a press card has no legal effect and that source confidentiality has the same status as any other confidential information in a Courtroom.
At one stage there was a push for journalist/source privilege in the same way that lawyer client. penitent/priest and doctor/patient privileges (as they then existed).
That never got anywhere because in the first three cases the owner of the privilege expects that the professional will keep information confidential, in the case of the journalist the source expecs that they will publish. If there is to be a “lions mouth” where denunciations can be made beyond the reach of the law, it should not be to such an ill defined group as journalists.
Nothing has chganged and this case exemplifies it. The law does not and should not provide cover for defamation. The reporter must take the decision to publish, knowing that disclosure might mean a jail term. That’s the only sensible test. If they’re fair dinkum they will protect sources and go to the can.