Journalists often get placed into a dark place between
Ethics & Law
when keeping sources confidential
Essentially, Journalism is a key element in serving the citizens of a democratic society – offering a voice for the voiceless.
As the disclosure of truth is a globally established ethical obligation of journalists, it is essential for the news to be passed on as accurately as possible, this means obtaining information from reliable sources.
Realistically, there is a lot of corruption in society. Sources who disclose underground information blow the whistle on governments and corporations wrongdoing will most likely seek anonymity in fear of danger. Upholding the confidentiality of the source is a must, for the safety of the source and for trust in journalism. However, the law recognises a public interest in the information being kept confidential but insists there is greater interest in the source being revealed in court. This is how journalists end up in a pickle.
The legal system itself has flaws, so there must be other methods of correcting wrongs; journalism can be one of those ways. – The News Manual
Ethics Vs Law
The Media, Entertainment Arts Alliance (MEAA) is an established union and industry advocate for Australias media and communication professionals. The MEAA adopted the Journalistic Code of Ethics as a professional code of conduct to guide journalists in conscientious decision making.
Respect for truth and the public’s right to information are fundamental principles of journalism. Journalists search, disclose, record, question, entertain, comment and remember. They inform citizens and animate democracy. They scrutinise power, but also exercise it, and should be responsible and accountable. – The MEAA Journalist Code of Ethics
It is fundamental for journalists to consider the motives of the source prior to promising confidentiality, as it shouldn’t be granted lightly, purely because of the legal implications that will arise. But when a source seeks anonymity, it must be respected. Upholding this agreement is not only to fulfil the Journalist Code of Ethics but for society as a whole, to ensure there is a free flow of information and democracy is being met. If the journalist broke the agreement, sources would withhold their information, the trust would be lost and the world will burn. Basically.
Although MEAA Journalist members commit their practice to Honesty, Fairness, Independence and Respect the rights of others and follow the Codes of Ethics; this is not an adequate escape for refusing to produce information and/or material to the courts that may reveal a source in which the journalist would be in disobedience contempt.
Disobedience Contempt – Interference with the administration of justice by refusing to obey an order of a court.
Well, it’s an Ethical dilemma
It is vital for journalists to uphold the confidentiality of their sources, as it is also protecting freedom of speech.
Journalist’s professional ethics must take priority over the demands of the law with integrity. If the journalist fails to do so, as mentioned before, metaphorically speaking, the world will burn. No trust in journalism means no disclosure of truth. What kind of world would that be?
But, as far as the Law is concerned, the journalist must answer if it is necessary for the interests of justice.
So what happens when a Journalist refuses to hand over information that could reveal their sources?
As mentioned before, when a journalist refuses to comply with the courts’ demands, they can be in disobedience contempt. This could mean jail time or be fined.
Australian journalists who refused court orders and served time in jail.
- 1989 – Tony Barras served five days in jail and was fined $10,000.
- 1992 – Joe Budd served 7 days in jail.
- 1993 – Chris Nicholls served 3 months in jail.
What has been done?
Fortunately, now, for Australian journalists, depending on which state you are in, Shield Laws have been introduced to possibly protect journalists from revealing their source. The first Shield Law was Federal, which was introduced in March 2011. The first Western Australia Shield Law dismissed Gina Rinehart’s attempt to subpoena investigative journalists Adelle Ferguson and Steve Pennells for refusing to disclose documents.
Shield Laws – A term used to describe an array of laws that offer varying levels of protection to journalists or other communicators who would otherwise face a disobedience contempt charge for refusing to reveal a confidential source or hand over confidential materials to government agencies or courts. – Pearson & Polden
It literally depends on which state you are in…
Journalists can refuse to hand over information, but the Law still has control.
Unfortunately, journalistic communications are being caught up in the nets of official surveillance and national security, in which compromises the confidentiality of the source. Living in a digital dimension, journalists need to take cautious steps to avoid leaving a digital trail to being subpoenaed. This includes mobile phone records, laptops, documents and emails. The most secure method is probably in person.
The dark place is a legal paradox where Law and Ethics are at odds. It is up to journalism to continue to connect power, accountability and trust to fulfil justice in the world.