Protection of journalistic sources is generally acknowledged as a fundamental component of press freedom because, without it, sources could be deterred from informing the press on matters of public interest.
In this article, we consider two cases which have put the topic of source protection in the spotlight.
Current position
There are certain safeguards in law that afford journalists and media outlets protection from being required by a court to disclose information or documentation given to them by a source, and one component is found in section 68 of the Evidence Act 2006 which provides:
(1) If a journalist has promised an informant not to disclose the informant's identity, neither the journalist nor his or her employer is compellable in a civil or criminal proceeding to answer any question or produce any document that would disclose the identity of the informant or enable that identity to be discovered.
However, a judge may order that this protection does not apply having balanced the interests of:
- any likely adverse effect of the disclosure on the informant or any other person; and
- the public interest in the communication of facts and opinion to the public by the news media and, accordingly also, in the ability of the news media to access sources of facts.
In addition, a judge may prohibit the disclosure of a confidential communication, confidential information, or information that might reveal a confidential source having weighed the interest of the disclosure in the proceeding against the public interest in preventing any potential harm caused by the disclosure, including any restriction on activities that rely on the free flow of information.1
New Zealand
At the end of 2023, it was reported at the conclusion of a criminal trial that TVNZ had previously been required to disclose parts of an interview it had conducted with an informant which had not previously been broadcast. The disclosure was ordered as part of criminal proceedings in which the informant was appearing as a key prosecution witness.2
The informant in question was the victim of a sexual assault in 2008 when she was aged 15 and had been interviewed by TVNZ in 2015 about her experience, albeit on the understanding that her account of the specific incidents of offending would remain confidential.
In 2020, two individuals were prosecuted for their offending against the informant and, prior to their criminal trial, they sought disclosure of the full, hour-long, interview between TVNZ and the informant, parts of which had not previously been broadcast.
At the District Court, it was ordered that around 2 minutes of footage be disclosed but that decision was challenged in the Court of Appeal on the basis that the Judge had given too much weight to issues of confidentiality and privacy when considered against the competing public interest in the Defendants' fair trial rights.
The Court of Appeal decided that the parts of the TVNZ interview footage in which the informant provided a narrative of the alleged offending ought to be disclosed, totalling around 30 minutes of the one-hour interview, because that footage was relevant to the criminal trial and, as far as that footage was concerned, the Defendants' rights to a fair trial outweighed any privacy or confidentiality concerns. In essence, the strong evidential value of the interview in the Defendants' criminal trial was weighed against any potential chilling effect on members of the public trusting the media to keep their information confidential.
In reaching the decision to order wider disclosure, the Court of Appeal said that the privacy and confidentiality concerns were more limited in this case because the informant had already waived her right to anonymity by giving the TVNZ interview in the first place and some details of the specific incidents of offending had already been broadcast in 2015 with the informant's consent.
UK
The issue of source protection has also recently been before the courts in the UK in the case of Stokoe Partnership Solicitors v Dechert LLP and Others.3
In that case, Stokoe sought an order for disclosure against various parties, including media outlets, for documents relevant to its claim that certain email accounts had been hacked. Of relevance was section 10 of the Contempt of Court Act 1981 which states that:
No court may require a person to disclose, nor is any person guilty of contempt of court for refusing to disclose, the source of information contained in a publication for which he is responsible, unless it be established to the satisfaction of the court that disclosure is necessary in the interests of justice or national security or for the prevention of disorder or crime.
In Stokoe, the applicants did not seek to rely upon the exception that the disclosure was necessary in the interests of justice. Instead, they sought to obtain the evidence without endangering the identity of a source by permitting the documents to be provided in a redacted form. The application was resisted because, even in a redacted form, it was said that disclosure would result in jeopardising the identity of the journalists' sources.
In reaching its decision, the court relied upon Vardy v Rooney which determined that the burden is on the journalist to establish that there is a "reasonable chance" or "serious risk" of compromising the source's identity.4 To satisfy that burden, the media outlets in Stokoe produced witness evidence to the effect that even giving the information sought in a redacted form would risk revealing the identity of the source and this was held to be sufficient in the circumstances of that case.
Accordingly, whilst the court acknowledged the applicant's fair trial rights, in the absence of an argument that the disclosure was necessary in the interests of justice, the risk of endangering the source's identity meant that the application was dismissed.
Comment
These two cases demonstrate a potential nuance in the approach taken in New Zealand and in the UK to issues of source protection, with New Zealand adopting a balancing exercise approach, rather than a test of necessity, to assess whether it is in the public interest for disclosure to be ordered.
Issues involving source protection and confidentiality will inevitably be fact-specific, but it is important that care is taken by journalists when liaising with a source because there is not necessarily a blanket guarantee of confidentiality, particularly when the subject matter in question does, or could, involve litigation in the courts.
In the UK cases of Rooney and Stokoe, efforts were made by the applicants to eliminate the risk of a source being identified by either seeking to have the documents provided in redacted form or merely identified by way of an index. However, in each case, the court ruled in favour of the journalist and emphasised that where there is a reasonable chance or serious risk of compromising the source's identity, disclosure ought not to be ordered.