For journalists, sources of information are vital to the media’s functioning (Butler & Rodrick, p. 461). Often informants provide journalists with key details on various stories. However, there are some circumstances where informants wish to maintain a level of anonymity (i.e. whistle blowers), due to the controversial or shocking nature of the information they possessed and the consequences that might arise from communicating it. This refers to the idea of confidentiality, an ethical dilemma that journalists often must deal with. The MEAA code of ethics states that journalists must respect confidences that were accepted, under any circumstances.
So, what protection is there for journalists that wish to maintain the confidentiality of their source(s), should they be asked to reveal them in court?
If a journalist keeps the identity of a source secret against the insistence of a court or parliament they can be held in contempt, and face significant fines or even jail. Shield laws prevent this by excusing journalists from having to identify their confidential sources and refusing to supply any documentation or records that may disclose the identity of the source(s) in court (Ellingsen 2018). New South Wales was the first to introduce shield laws in 2012, with each state and territory gradually followed with varied levels of protection, besides Tasmania and Queensland who offer lower levelled protection. A journalist must have guaranteed anonymity to their source to apply for shield laws (Pearson & Polden, p. 303).
However, the law is not absolute (Ellingsen 2018). Under Section 10 of the Contempt of Court Act 1981, courts have the right to demand that journalists reveal sources if ‘disclosure is necessary in the interests of justice or national security or for the prevention of disorder or crime’ (Keeble, p. 96).
What happens if a journalist does reveal their source(s)?
If a source has given a journalist information in confidence and that confidence is breached, the journalist, in question, can be charge with substantial fine(s), loss of employment, and even sentenced to prison for doing so. In addition, if it becomes a regular habit for a journalist to breach their confidentiality agreements with sources, they’ll find it difficult to work with future informants if it means their identify may be disclosed in later proceedings.
What protection is there for whistle-blowers?
The Australian Securities and Investment Commission (ASIC) recommends those who believe they obtain information which breaches ASIC law should seek legal advice to identify what legal protection they can apply for. But, these laws offer little protection for those that bypass the official channels and go directly to the media with their allegations (Kaplan 2011).
- The Corporations Act 2001(Corporations Act) protects whistle-blowers from persecution and declares it a criminal offence to victimise a whistle blower due to a protected disclosure they made. It also allows a whistle blower to claim for compensation if they have suffered damages.
- Section 126H of The Evidence Amendment (Journalists’ Privilege) Act 2011 subsection (1) outlines that ‘If a journalist has promised an informant not to disclose the informant’s identity, neither the journalist nor his or her employer is compellable to answer any question or produce any document that would disclose the identity of the informant or enable that identity to be ascertained’.
Protections such as these are designed to encourage people within companies, or with special connections to companies, to alert ASIC and other authorities to illegal behaviour.
So, what was the ABC Cabinet Files Case?
What do these draft laws aim to change and what does this mean for the future of journalism and espionage?
Investigative journalists and political reporters have always been reliant on leaks from confidential sources and have developed protocols for dealing with them (Pearson & Polden, p. 287). However, this proposed legislation aims to restrict the freedom of information and criminalise espionage and foreign interference.
The National Security Legislation Amendment (Espionage and Foreign interference) Bill 2017 outlines that comprehensive new espionage offences will be introduced to the Criminal Code. These changes will criminalise a broad range of dealings with information, including possessing or receiving. This means that if someone encounters any classified documents or material, could face penalties ranging “from five to 15 years imprisonment for standard offences” (McGowan 2018), even if they haven’t communicated with journalists or governing officials.
To put it simply this draft law aims to prevent whistle-blowers and journalists publishing controversial or harmful stories by criminalising them before they can even communicate the information as well as restrict the level of protection they should receive.
Ellingsen, S 2018, Sources and Confidentiality, lecture recording, Media Ethics and Law BCM113, University of Wollongong, delivered 11 April 2018.
Keeble, R 2009, ‘At the root of relationships: Sourcing Dilemmas’, Ethics for Journalists, Routledge, London.
Pearson, M & Polden, M 2015, The Journalist’s Guide to Media Law: A handbook for communicators in a digital world, ALLEN & UNWIN, Australia.
Butler, D & Rodrick, S 2015, Australian Media Law, THOMSON REUTERS, Australia.
National Security Legislation Amendment (Espionage and Foreign interference) Bill 2017
Media Watch: Media Companies oppose Draft Laws 2018, television program, Australia Broadcasting Corporation, 5 February
Media, Entertainment & Arts Alliance 2018, MEAA Journalist Code of Ethics, accessed 5 May 2018, https://www.meaa.org/meaa-media/code-of-ethics/.
Australian Securities & Investment Commission 2015, Guidance for whistleblowers 2015, viewed 9 May 2018, http://asic.gov.au/about-asic/asic-investigations-and-enforcement/whistleblowing/guidance-for-whistleblowers/.
McGowan, M 2018, “Coalition’s security laws ‘criminalise’ reporting, media companies warn”, The Guardian, 28 January, viewed 9 May, https://www.theguardian.com/australia-news/2018/jan/25/coalitions-security-laws-criminalise-reporting-media-companies-warn.