Source of contention
February 1, 2011
When – if ever – should journalists be forced to disclose their confidential sources?
It’s been a hot issue lately. The Crown applied to court for an order requiring TV3 to provide identifying information of the Waiouru Army Medals thief after John Campbell’s anonymised TV interview with him. The Serious Fraud Office compelled the National Business Review to turn over notes and tapes made during its scoop on South Canterbury Finance. The government had to fend off accusations that its new Search and Surveillance Bill did not properly protect journalists’ confidential sources.
NBR was outraged at the Serious Fraud Office’s demand, describing its powers as “draconian”. The paper complied under protest, saying the materials didn’t include anything that wasn’t already published. But it was clearly worried that the SFO might come back for more. “Our concern is that we may be a target of more fishing trips by these investigators,” NBR’s publisher told NBR.
NBR’s coverage turned the heat on the SFO, no doubt to disincentivise such fishing trips with an implicit reminder of the sterling advice attributed to Mark Twain: “Never pick a fight with a man who buys ink by the barrel.”
Perhaps the SFO turned up the blowtorch a notch too high: Nevil Gibson’s suggestion that the SFO isn’t subject to judicial review or the Bill of Rights Act in the exercise of its powers is wrong on both counts. But his description of the powers as “draconian” seems on target. The SFO Act contains no protection for confidential media sources equivalent to that in the Evidence Act. The Evidence Act doesn’t contain an absolute rule that journalists can never be forced to reveal their sources, but it does mean that journalists can insist that the decision is made by a judge after weighing a range of sensible statutory factors. There doesn’t seem to be any good reason not to carry this over into the SFO legislation.
The Evidence Act provisions are fairly new, and got their first run in the Campbell case (which doesn’t seem to be available online). TV3 argued that if they were ordered to turn over information identifying their interviewee, then their sources would “dry up”. The Crown asked me to give evidence about whether that was true. What hard evidence is there of this “chilling effect” on confidential sources?
My evidence is here (skip the first 10 paras or so describing my qualifications). The cases, reports and articles I’ve drawn on are listed at the end.
I found the exercise fascinating. It quickly became obvious there is no hard evidence. If sources don’t come forward, we don’t find out, and we can’t know why they didn’t. Most of what passes for evidence is from journalists, and it’s difficult to escape the impression that it’s a bit self-serving.
But there’s much more to the question than that. Pretty much everyone seems to agree that there must be some benefit to source confidentiality. Journalists use confidential sources all the time. Some ground-breaking stories relied on confidential sources, including (from the US alone) Watergate, the My Lai massacre, the Pentagon Papers, the Iran-Contra scandal, Abu Ghraib, and the federal government’s involvement in unauthorised wire-tapping and torture. Most countries provide some protection for journalists’ sources.
But here’s the thing. Almost nowhere is the rule absolute. So those sources have come forward for those stories despite the danger that the journalist might be compelled to identify them in court.
Ah, but noble journalists will go to jail sooner than reveal a source, right? Well, some will, and have. Others haven’t. US research (a bit old, but still valid, I bet) says that journalists almost never discuss this possibility with their confidential sources. I gather that Phil Kitchen and Nicky Hager do. But how many other journalists bother to point out that the law might override their promises of confidentiality and talk about what they might do then? To be fair, this is mostly because most confidential conversations aren’t very important. Helpful to the business of news gathering, sure, but really earth-shattering revelations are very rare.
There is a proud journalistic tradition of protecting sources to the last. But it’s a bit mythical, I think. Scratch the surface and journalists are sometimes prepared to decide for themselves when it’s right to burn a source. (And that’s not counting the ones who negligently or in the course of gossip, let confidential information slip). For example, many journalists would burn a source to save a life. Many would burn a source to prevent an innocent person from being convicted of a crime. Many would feel no obligation to a source who lied to them. Some even say they would do so if they thought it was “in the public interest”. Some in New Zealand seem even to have done it because it suited their journalistic purposes.
Journalists want the right to take this decision for themselves, and not have it foisted on them by a court. But it’s not self-evident that their decision-making process is better than the one set out in the Evidence Act. And it’s not clear why the media’s occasional decision to burn sources themselves doesn’t chill sources as much, or more, than the Evidence Act.
It all gets a bit messy, doesn’t it?
The reason it’s not messier still is that, in fact, police and plaintiffs around the world only rarely seek access to such the identity of confidential media sources. Partly, that’s because the media publish most of the useful material they gather, the names of their sources are rarely vital, and the police and plaintiffs know they’ll get publicly excoriated if they do.
As for the sources themselves, they probably have a range of reasons for coming forward, and (if they think about it at all) probably usually think the chance of their identities coming out is low. Many won’t have done anything wrong. For some, the overriding factor is getting the information out. If push comes to shove, some sources are prepared to agree to be named.
But there are others – possibly breaking the law or jeopardising their jobs by coming forward – for whom absolute confidentiality is crucial. My best guess is that they are unlikely to be chilled by the odd court case ordering a source to be disclosed, especially if the facts seem far removed from their situation. Because in fact, that pretty much describes the status quo. On the other hand, if there was a string of high-profile court orders against journalists forcing them to disclose their sources – and the journalists did so rather than going to jail for them – then some of those types of sources may well get chilled, to the detriment of important stories in the public interest. (Alternatively, some might simply slip an unmarked envelope under a journalist’s door – though this would make stories harder to check out, which must count as a significant detriment when source-protection is weakened).
At the end of the day, this conclusion seems a distance from the righteous wrath that routinely spills from the media about the dire consequences attendant upon any attempt to get them to breach a confidence. Their claims are exaggerated, I think. But that’s not to say that source protection is not important.
PS: The Campbell case was resolved when TV3 agreed to give evidence of details of their meeting with the thief which provided a basis for inferring the identity of the thief (the police had some CCTV footage from the hotel where it occurred anyway, I gather, and it probably related to that). Was that betraying their source? The judge would probably have ordered disclosure without it.
Topics: Confidential sources | Comments Off on Source of contention
Corrections corrected
January 27, 2011
Remember the prisoner who sued the Department of Corrections for confiscating and destroying his Cosmopolitan magazine? (Two hand-drawn pictures were also destroyed).
He won. Turns out, it was an easy call. Under the Corrections Act, prisoner property can only be destroyed if the prisoner fails to comply with a requirement to remove it, and the destruction is performed with the authority of the prison manager and in the prisoner’s presence. The department admitted it flouted those rules. Game over. (I suspect there are serious and under-explored questions about how often prison authorities break the law.)
But only particular types of property can be confiscated. It must be dangerous, booze or drugs, perishable (that’s weird) or “objectionable”. One of the prisoner’s arguments was that the confiscated property was not objectionable, particularly in light of his rights under the Bill of Rights Act. The magazine reportedly compared pictures of real and fake breasts. The drawings were of a celtic cross and a woman in underwear.
The Corrections Act contains no definition of “objectionable”. The Films, Videos and Publications Classification Act contains an extensive definition which of course isn’t directly relevant, but may well not cover the confiscated items.
Judge Williams ducked this question, alas. He pointed out that the materials were destroyed, so were not in evidence and that the department hadn’t provided a full justification for its actions. Hmmm. One might have thought that a copy of the magazine, at least, could have been uncovered, and if the department hadn’t addressed that aspect of the claim, that’s its lookout.
At the end of the day, it doesn’t make much difference to the outcome. But if you are a free speech law trainspotter, you might be a bit disappointed with the court’s failure to grapple with the proper construction of “objectionable” in this context.
Topics: NZ Bill of Rights Act | Comments Off on Corrections corrected
Devlin name-suppression beat-up
January 25, 2011
Russell Brown has a terrific post demonstrating yet again the way the media have lost the plot about name suppression.
He notes that no judge ever actually made a determination of the suppression application on the merits: an interim order was made by consent so that the application could be properly argued later. I suspect the application would have been declined, even though the offence was trivial. This was treatment that would have been available to anyone who indicated that they wanted to make a suppression application, not just wealthy celebrities.
I think the media may be missing what could be the most significant aspect of this case. Was Devlin’s behaviour really criminal? I guess we don’t know all the details of what happened, but from Devlin’s account, this is pretty inconsequential misbehaviour. I worry that the police are overusing low-end and nebulous offences like disorderly and offensive behaviour. Did you know that convictions for offences like this have rocketed from about 2000 per year in 1990 to more than 10,000 in recent years? Yes, there have also been more criminal convictions overall. But the use of these offences has risen from 1.2% of convictions to 4.5%.
I worry in particular about the use of these offences against protesters, but there’s plenty of evidence of their use as a catch-all for police who get irritated with someone who’s being stroppy.
Or are we four times more offensive and disorderly than we were 20 years ago?
Topics: Name suppression, Protest speech | Comments Off on Devlin name-suppression beat-up
Tweeting in court
January 25, 2011
The English Chief Justice, Lord Judge (yep, that’s his name), has laid down some interim guidelines on tweeting in court. In short, he suggests that tweeting won’t usually prejudice the administration of justice, so it seems that permission should usually be granted. On the other hand, in some circumstances there may be reason to ban tweeting:
Without being exhaustive, the danger to the administration of justice is likely to be at its most acute in the context of criminal trials e.g., where witnesses who are out of court may be informed of what has already happened in court and so coached or briefed before they then give evidence, or where information posted on, for instance, Twitter about inadmissible evidence may influence members of a jury. However, the danger is not confined to criminal proceedings; in civil and sometimes family proceedings, simultaneous reporting from the courtroom may create pressure on witnesses, distracting or worrying them.
Our judges are likely to be influenced by this approach.
Topics: Contempt of Court, Internet issues | Comments Off on Tweeting in court
No ordinary Joe
January 24, 2011
I interviewed Justice Joe Williams for The Court Report, about being a judge, his time as Chair of the Waitangi Tribunal, and about being the only judge on the bench with a top-20 hit. His responses are thoughtful and moving, I think.
Topics: General | Comments Off on No ordinary Joe
Erin Leigh succeeds in defamation appeal
January 23, 2011
The Court of Appeal’s decision is pretty much exactly what I predicted here. The briefing paper and the oral briefing about PR staffer Erin Leigh’s departure from the Minstry of the Environment are – contrary to Dobson J’s ruling last year – capable of defaming her. But her negligence claim is a loser.
The real interest in this case lies in the qualified privilege defence, I think, but that battle is yet to come.
Topics: Defamation | Comments Off on Erin Leigh succeeds in defamation appeal
Without prejudice?
January 21, 2011
Isn’t much of the coverage of the Auckland child abuse case based on the premise that crimes have been committed, and implicitly, that they were by the parents (and another family member)? That includes some of the statements from the government, as where Social Development Minister Paula Bennett is reported as saying that it was evident from the letter from the child’s mother that she was “actually hiding what was going on”.
How exactly are these defendants to expect a fair trial?
Topics: Contempt of Court | Comments Off on Without prejudice?
ECHR upholds Campbell, criticises success fees
January 19, 2011
The European Court of Human rights has endorsed the House of Lords majority finding in the Naomi Campbell case that her privacy was breached by the publication of photographs of her outside a Narcotics Anonymous meeting – and that this was not a disproportionate interference with the paper’s freedom of expression. (There’s lots of language about the domestic courts being given a margin of appreciation to strike this balance, so I imagine the ECHR would also have upheld the decision if it had gone the other way).
But the Court found that the 100% success fee awarded by the courts to Campbell as part of the cost order was a disproportionate limitation on the paper’s freedom of speech. That is, if the plaintiff arranges with lawyers that if she loses there will be no fee payable but if she wins the lawyers receive double their normal fee, and if after the plaintiff wins the courts allow that fee-doubling “uplift” to be reflected in the costs award – as they have in the UK – this is too punitive of defendants. INFORRM suggests this will probably kill off conditional fee agreements.
I’m not aware of such agreements being in widespread use in NZ in the media law field (or any other), though they are no longer considered unlawful. Just to boggle your mind further, such conditional fee agreements are usually supplemented with “after the event” insurance, which means that the plaintiff is covered against the possibility of losing the case.
Topics: Privacy tort | Comments Off on ECHR upholds Campbell, criticises success fees
Memo to HOS: When a man is accused of dismembering his former partner, don’t pap their 5-year-old kid
December 22, 2010
Yes, even if he may be an important witness. Especially if he may be an important witness.
Even if he’s in a public place.
Even if a different picture of the boy and his mum was supplied by the police. (Memo to the police: What the hell were you thinking?)
Also, don’t try to justify this sort of shoddy behaviour by pretending that publishing the photograph was in the public interest. If you are tempted to do so, then first make sure you can convincingly complete the following sentence: publishing a photograph of this 5 year-old child on his way to school, at a time when his father is suspected of chopping up his mother, will help the public by….
No fewer than nine people complained to the Press Council about the Herald on Sunday’s decision to run a picture of the son of Carmen Thomas. The Press Council wasn’t convinced by HOS’s claim that there was public interest in it, or that it didn’t invade his privacy because it was in a public place or because the police had already given them another photo. They called the publication “gratuitous.” Too right.
Topics: Press Council | Comments Off on Memo to HOS: When a man is accused of dismembering his former partner, don’t pap their 5-year-old kid
Press Council agrees with me
December 22, 2010
You might remember that I lambasted the Sunday Star-Times for its misleading front-page headline “Sex attack gets drunk driver off”. The story was about a woman convicted of drunk driving who hadn’t even appealed that conviction, only her sentence.
Well, Andrew Geddis was equally incensed, and complained to the Press Council. It upheld the complaint.
Topics: Media ethics, Press Council | Comments Off on Press Council agrees with me
« Previous Entries Next Entries »