Should the two Herald Sun journalists reveal the name of the person who leaked them confidential government material? The government understandably believes it should be able to conduct its business in confidence. And it is not the duty of public servants to leak government information, except in the most unusual circumstances: for example, where there is no other way to reveal the commission of a crime. An overriding consideration is that certain material is so sensitive it should not be divulged at all, for example, the movements of the SAS - particularly in a time of hostilities.
At the same time the media play a crucial and essential role as a check and balance against the abuse of power. While public authorities will wish to control information and reveal it in a way which is in their best interests - a perfectly normal human desire - it is the role of the media to obtain as much information as they can. Leaks are an important aspect of information gathering. Indeed ministers themselves, or more usually their advisers, will often do this to test reactions or to promote policies.
Leaking is crucial in ensuring the media is able to subject centres of power to proper scrutiny and so people can be informed on matters of legitimate public interest. Of course this also inevitably feeds us with irrelevant, flippant and trivial news, but this is the price we must pay. We certainly do not want the authorities to be the sole arbiter of what we should know.
This process is both tense and adversarial, but such is life in a democracy. The alternative is the perfection that only dictatorships based on some utopian ideology can offer.
The Times put it succinctly in a 19th century editorial when it said the first duty of the press is to obtain the earliest and most correct intelligence of the time, and by publishing it, to make it the common property of the nation.
As leaking is crucial to a democratic information gathering process, a promise of confidentiality (of source or sources) is almost always honoured, at least during the lifetime of the source. This is a part of the core ethics of the profession. Journalists - who are often disparaged, sometimes with justification - strongly believe that it is dishonourable to reveal a source. On this, they are absolutely right.
As the European Court says, if journalists could not guarantee that their sources would remain confidential, they and other potential sources could be deterred from assisting the press in informing the public on matters of public interest. The court has warned that the result of journalists not protecting their sources could be the undermining of what it has described as “the vital public watchdog role of the press”.
I do not think for one moment the government should be criticised in this case for trying to find out who leaked the embarrassing information. Any government, indeed anybody, is entitled to do this. But once the government decided on this course, it lost control of the process. The Director of Public Prosecutions and the especially the courts are independent, and rightly so.
What is absent is a mechanism to determine whether there is a public interest in compelling disclosure which is greater than the public interest in encouraging the free flow of information. The best place for this to be done is in a court. After all we have a judiciary respected for its independence, and that is uniquely well equipped to undertake this balancing exercise.
This could be done under a “shield law” (see On Line Opinion article “Journalists could be victims of Melbourne's crime underworld”). This could not give an absolute protection to journalists, although I understand Swedish law does.
It is sometimes argued that such a law would be a charter for journalists to invent: to attribute a story to a source which did not exist. In the recent Hutton inquiry in the UK, a journalist was found to have wrongly attributed information to a real source, the scientist, Dr Kelly who subsequently committed suicide. The judge said as a general rule, a person’s reputation (in this case Tony Blair) should never be impugned by a publication in print or on the air, based on a confidential source, unless this has been authorised by an independent editorial assessment. This may, as Richard Ackland argues, lead to dull journalism. But it will lead to journalism of the highest standard. In fact this is the practice in some leading US newspapers.
In my view, a journalist should only be compelled to reveal a source where evidence of a source is crucial in the trial of a serious crime.
And taking Lord Hutton’s view on board, I would suggest that a journalist should only be compelled to reveal his or her sources where:
- a prosecutor can show that there is a probable cause to believe that the journalist has information that is clearly relevant to a specific probable violation of the criminal law, constituting a serious criminal offence (and not necessarily an offence arising only from the fact that the contents of an official document have been disclosed);
- the plaintiff can demonstrate that the information sought cannot be obtained by alternative means less destructive of freedom of speech and of the press;
- the publication has been scrutinised and authorised by an editorial process; and
- where the plaintiff can demonstrate a compelling and over-riding interest in the information.
A shield law based on these principles would not remove the competing interests which abound whenever an unauthorised leak is published. But international experience suggests it would be the most effective way of resolving them consistent with the needs of a democratic society.