Journalism Confidentiality

Journalist have an ethical obligation to protect the confidentiality of their sources, but when keeping your sources confidential when asked to reveal them by the court or parliament, a journalist can be punished with jail time or a fine. Where confidences are accepted, respect them in all circumstances. This encourages journalist to attempt to get information on the record and to engage in a process of assessment of the credibility of a source before accepting off the record information. Sometimes journalist must keep the confidence of a source in order to receive the information in the first place and sources would no longer exist if journalist made it a habit of revealing their sources.

A journalist can be charged with disobedience contempt if they do not reveal their sources when asked by the court. The journalists' code is unusual among professional ethical codes in that it offers no easy escape for the reporter pressed in court to reveal a source. Some journalist have been charged with contempt and fined for refusing to provide documents to courts when subpoenaed to do so. For example, Herald-Sun journalists Michael Harvey and Gerard McManus face jail for refusing to reveal the key source of an article that caused Government embarrassment.

Another field of contempt for journalists is from the powers of parliament at both federal and state levels. The law of contempt of parliament is aimed at preserving the smooth and fair operations of the parliament. Journalist can find themselves charged with contempt of parliament in a number of ways: publishing a comment 'reflecting' on a House, referring to parliamentary records and documents in court proceedings without permission, the 'premature' publication of a committee's proceedings or evidence, and publishing material that tends to obstruct a member of parliament in the discharge of a member's duties. However, the most common type of contempt of parliament journalist are charged with is when they reveal the inner discussions of a parliamentary committee that is bound to secrecy until its report has been tabled in the parliament.

A separate area of the law, which provides a mechanism for protecting secrets, is the action for breach of confidence. A journalist is not infrequently faced with the question of whether confidential information can be revealed in the public interest. The courts apply a three-point test to determine whether there has been a breach of confidence: the information must have a quality of confidence about it, the circumstances in which the information was imparted must have given rise to an obligation of confidentiality, and the recipient must disclose the information or use it t the detriment of someone entitled to prevent such use. Confidential information can include documents, ideas, words, and objects, but most commonly the information is sensitive financial, legal, or private matter.

The law provides a defense to breach of confidences in a limited range of circumstances. the most straightforward being that you were order by a court to disclose the confidential information. The first defense is 'just cause or excuse' meaning a confidence can be broken if it relates to a crime, but the clear requirement is that there is some overriding public interest in the confidence being broken. The second defense is fair report. The third defense is protected disclosure meaning the public interest factor involves questions of to whom the disclosure may be made. Disclosure to one class of people may be considered to be in the public interest, while disclosure to a broader class may not.