Media Law Seminar Paper

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BA.LL.B(HONS) IV YEAR VIII SEMESTER

DYNAMICS OF JOURNALISTIC PRIVILEGE: A STUDY

Contents TABLE OF CASES ........................................................... ................................................................................. ............................................. .................................. ........... 3 CHAPTER I ............................................. ................................................................... ............................................ ............................................ ...................................... ................4 1.1

INTRODUCTION........................................... ................................................................. ............................................ ...................................... ................ 4

1.2

NEED FOR JOURNALISTIC PRIVILEGE.................. PRIVILEGE........................................ ............................................ ........................ 5

CHAPTER II........................................................... ................................................................................. ............................................ ............................................ ........................ 7 2.1 JOURNALISTIC J OURNALISTIC PRIVILEGE IN INDIA: THE LAW ............................... .................................................. ................... 7 2.2 JOURNALISTIC PRIVILEGE: THE STAND OF JUDICIARY ................................. ................................. 10 2.2.1 JAI PARKASH AGGARWAL VS VISHAMBHAR DUTT SHARMA AND ORS. .......................................... ................................................................. ............................................. ............................................. .............................................. ............................ ..... 10 2.2.2 JAVED AKHTAR V. LANA PUBLISHING COMPANY PRIVATE.................. PRIVATE.................. 11 2.2.3 COURT ON ITS OWN MOTION VS THE PIONEER P IONEER ......................................... ......................................... 12 2.2.4 Dr. S. KRISHNA RAO VS USHODAYA PUBLICATIONS .............................. .............................. 13 CHAPTER III .......................................... ................................................................ ............................................ ............................................ .................................... .............. 15 3.1 JOURNALISTIC PRIVILEGE IN OTHER COUNTRIES........................................... ........................................... 15 3.1.1 JOURNALISTIC PRIVILEGE IN UNITED STATES .......................................... .......................................... 15 3.1.2 JOURNALISTIC PRIVILEGE IN UNITED KINGDOM .............................. .................................... ...... 17 3.1.3 ECHR................................................................ ...................................................................................... ............................................ ................................ ..........19 3.1.4 QUALIFIED PRIVILEGE IN THE INTERNATIONAL CRIMINAL TRIBUNALS .......................................... ................................................................. ............................................. ............................................ ............................ ...... 22 CHAPTER IV .......................................... ................................................................ ............................................ ............................................ .................................... ..............24 4.1 CONCLUSION.................................................... .......................................................................... ............................................. .................................... .............24 REFERENCES/WORKS CITED .......................................... ................................................................ ............................................ ............................ ...... 27

MEDIA LAW SEMINAR PAPER

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TABLE OF CASES Attorney General V. Clough Attorney General V. Mulholland & Foster Blackmer v. United States Branzburg v. Hayes Branzburg v. Pound, Branzburg v. Meigs, British Steel Corpn. v. Granada Television Ltd Caldwell v. U.S., Coco v. Clark Court On Its Own Motion Vs The Pioneer Dr. S. Krishna Rao Vs Ushodaya Publications Goodwin V. The United Kingdom Hennesey v. Write In Re Pappas Jai Parkash Aggarwal v. Vishambhar Dutt Sharma And Ors Javed Akhtar v. Lana Publishing Company Private Saltman Engineering Co. Ltd. v. Campbell Engg. Co. Ltd Prosecutor v. Brdaninand Talic United States v. Cuthbertson


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CHAPTER I [Edmund] Burke said there were Three Estates in Parliament; but in the Report-ers’ Gallery yonder, there sat a Fourth Estate more important far than they all. It is not a figure of speech, or a witty saying; it is a literal fact, — very momentous to us in these times. . . . Whoever can speak, speaking now to the whole nation, becomes a power, a 1

branch of government, with inalienable weight in law-making, in all acts of authority.

-Thomas Carlyle, 1840

1.1 INTRODUCTION

On July 6, 2005, Pulitzer Prize-winning New York Times reporter Judith Miller was jailed 2

for refusing to disclose the identity of a confidential source to a federal grand jury, making her one of a number of journalists imprisoned recently for adhering to the canons of their 3

profession. When prominent members of the media are jailed for adhering to principles that have long been an integral part of investigative reporting, it raises a question about the relationship between our judicial system and our democratic system of governance.

4

The

protection of journalists‟ sources of information is a basic condition for both the full exercise

1

Thomas Carlyle, On Heroes, Hero-Worship, & The Heroic In History 141 (Michael K. Goldberg et al. eds., 1993) (1840).

2

Adam Liptak, Reporter Jailed After Refusing to Name Source, N.Y. TIMES, July 7, 2005, at A1.

3

American Society of Newspaper Editors Statement of Principles was originally adopted in 1922 as the "Canons of Journalism." The document was revised and renamed "Statement of Principles" in 1975.ARTICLE VI - Fair Play.

Journalists should respect the rights of people involved in the news, observe t he common standards of decency and stand accountable to the public for the fairness and accuracy of their news reports. Persons publicly accused should be given the earliest opportunity to respond. Pledges of confidentiality to news sources must be honored at all costs, and therefore should not be given lightly. Available at http://asne.org/kiosk/archive/principl.htm (last visited 1.4.2012) 4

Jeffrey S. Nestler, The Underprivileged Profession: The Case For Supreme Court Recognition Of The Journalist’s Privilege. University of Pennsylvania Law Review, Vol. 154, p. 201, 2005 Available at ssrn: http://ssrn.com/abstract=761867


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of journalistic work and the right of the public to be informed on matters of public concern.

5

Should the state‟s interest in mandating compliance with the rule of law out -weigh the press‟s role as a Fourth Estate and check on the power of government?

1.2 NEED FOR JOURNALISTIC PRIVILEGE

A free press depends on the free flow of information from the media to the people and from the people to the media. Journalists worldwide, whether working for local or national newspapers, or national or international television companies, routinely depend on non journalists for the supply of information on issues of public interest. Some individuals come forward with secret or sensitive information, relying upon the reporter to convey it to a regional, national or international audience in order to achieve publicity and stimulate public debate. In many instances, anonymity is the precondition upon which the information is conveyed from the source to the journalist; this may be motivated by fear of repercussions which might adversely affect their physical safety or job security.

6

Journalists face a difficult choice when a court orders them to produce the names of sources, other confidential information, or other materials, such as notes, etc. this may happen when an attorney for a party to a lawsuit or a criminal defendant, or a prosecuting attorney, or even the judge himself, seeks information from a journalist, either in court or in a deposition. If the journalist disobeys, he faces contempt citation. But if he complies, a host of journalistic

5

Report of Committee on Culture, Science and Education, The protection of journalists’ sources. Available at: http://assembly.coe.int/Main.asp?link=/Documents/WorkingDocs/Doc10/EDOC12443.htm#P19_81 6

Briefing Paper on Protection of Journalists' Sources Freedom Of Expression Litigation Project, May 1998. Avaialable at http://www.article19.org/data/files/pdfs/publications/right-to-protect-sources.pdf


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ethics question arise: A reporter/journalist who reveals sources‟ name soon may have no sources: the reporter won‟t be trusted.

7

In such the circumstances, journalists have long argued that they should be entitled to refuse to divulge both the names of their sources and the nature of the information conveyed to them in confidence. The argument is used in relation not only to written information, but also to other documents and materials, including photographic images, published or unpublished. Journalists argue that without means to protect their confidential sources, their ability, for example, to lay bare corruption of public officials would be seriously impaired. Despite the clear advantages of ensuring that journalists protect the anonymity of their sources, situations arise when the interests of journalists clash with other powerful interests and rights. Often, the clash relates to the administration of justice, commonly where information is relevant to a criminal or civil proceeding. Thus, journalists not only need journalistic privilege or reporter‟s privilege on the very outset but also the extent to which journalists have such privilege to refuse to disclose the identity of confidential sources is another crucial area.

7

James Redmond, Media Organization Management , Second Edition, Dreamtech Press (2004), p. 362-363. Available at: http://books.google.co.in/books?id=OeaWghjret8C&pg=PA362&dq=reporter's+privilege&hl=en&sa=X&ei=8_ d9T5qTC4bUrQe6qYGfDg&ved=0CFsQ6AEwBg#v=onepage&q=reporter's%20privilege&f=false (Last visited 2.4.2012)


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CHAPTER II 2.1 JOURNALISTIC PRIVILEGE IN INDIA: THE LAW

At the very outset it needs to be stated that journalistic privilege is yet to be codified in India. Therefore the situation is not crystallised however the Law Commission of India had attempted to crystallize the situation by addressing the question „Whether a journalist or other person responsible for a publication by way of mass media should be compelled to disclose, in a court of law, the sources of information acquired by the journalist in confidence for his profession.‟ It was observed in the Report that no privilege available to journalists is recognised in Indian Law. In most countries, the Code of Professional Ethics expects that journalists shall not disclose what is obtained by them in confidence. But this code of professional conduct has not so far received any formal recognition in statutory provisions in India.

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2.1.1 CONFIDENTIAL INFORMATION When one person supplies information to another on condition that he will keep it secret, or is inferred where a person employs of requests the other to acquire information and hold it in confidence for him and he accepts that information to be treated confidentially, confidential 9

obligation is apparent. For an actionable breach of confidence, the requirements are: 1) Information must have the necessary quality of confidence about it. 2) Information must have been imparted in circumstances importing an obligation of confidence.

8

Law Commission of India, Ninety-Third Report on Disclosure of Sources of Information by Mass Media, September 1983, p. 4 9

Coco v. Clark (1969) RPC 41.


7


3) There must be unauthorised use of that information to the detriment of the party communicating it.

10

Under Indian law the breach of confidence in business and personal relationships may often be actionable but the protection of confidence in itself as a basis for creatin an exemption from the obligation to give evidence of the matters concerned has not been recognised.

11

2.1.2 THE LEGAL OBLIGATION TO GIVE EVIDENCE AND EXCEPTIONS TO IT [T]he public has a right to every man’s evidence, a maxim which in its proper sense cannot 12

be denied.

This maxim has also long been present in the American legal system: “ It is . . . beyond controversy that one of the duties which the citizen owes to his government is to support the administration of justice by attending its courts and giving his testimony whenever he is properly summoned.”

13

Thus, it is well settled that there is a general legal obligation upon all

persons to give evidence in court concerning relevant facts. Coupled with this obligation is the obligation to answer all questions relating to relevant facts; without such an obligation, the judiciary would not be able to undertake enquiry for the purpose of rendering justice. Though there are few exceptions to this general obligation that have been created in most common law countries based on considerations of public policy. As the Supreme Court of the United Sates has observed, „there is a long standing principle that the Grand Jury has a right

10

Saltman Engineering Co. Ltd. V. Campbell Engg. Co. Ltd. (1948) 65 RPC 203 (CA).

11

Supra note 8 at p. 6.

12

18 WIGMORE ON EVIDENCE § 2192, at 71 (John T. McNaughton ed., 1961) (citing 12 PARL. HIST. ENG. (1742) 643, 693. 13

Blackmer v. United States, 284 U.S. 421, 438 (1932) (Hughes, C.J.).


8


to every man‟s evidence, “except that evidence which is protected by a constitution, a 14

common law or statutory privilege.” . The exceptions provided under Indian law to the general obligation of giving evidence are the 15

following privileges : 16

1) A constitutional privilege against self incrimination ; 2) Under Indian Evidence Act:Sec. 121: Matters relating to conduct of judges or coming to the knowledge of judges, etc in their judicial capacity; Sec 122: Communications which are made to a spouse during marriage; Sec. 123-124: State secrets; Sec. 126 & 129: Communications between a legal adviser and a client; Sec. 129, 131: certain title deeds; Sec. 132: Certain incriminating matters. Journalistic privilege is not recognised in Indian law, neither under the constitution nor under the statutory provisions of Indian Evidence Act. However, the Law Commission of India ninety third report recommended the insertion of provision in the Indian Evidence Act, 1872 to address to statutory lacunae in the rules of evidence as to Journalistic Privilege as well as corresponding insertions in Civil Procedure Code, 1909 and Criminal Procedure Code providing provisions of appeal. It recommended that Sec 132A should be inserted which shall read as:

14

Braamgburg v. Haves, (1972) 33 L. Ed. 626.

15

A privilege is an immunity or exemption conferred by special grant to a certain class or individual in derogation of a common right. Usually a privilege or disability is created by law on the ground of some consideration of public policy. The law excludes or dispenses with, some kinds of evidence on grounds of public policy because it is thought that greater mischief would probably result from requiring or permitting the admission of such evidence than from granting a privilege or creating a disability in respect thereof. Further see, Law Commission of India Ninety Third Report Id. Chapter II. 16

Article 20(3), Constitution of India.


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Sec 132A: No court shall require a person to disclose the source of information contained in the publication for which he is responsible, where such information has been obtained by him on the express agreement or implied understanding that the source will be kept 17 confidential. 2.2 JOURNALISTIC PRIVILEGE: THE STAND OF JUDICIARY

While the Supreme Court has so far not been called upon to deal with this delicate balance, the High Courts in the few cases that came up before them have tended to let public interest arguments ride roughshod over journalistic privilege.

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2.2.1 JAI PARKASH AGGARWAL VS VISHAMBHAR DUTT SHARMA AND ORS.

In this case the question for consideration that came before the court was whether the concerned newspapers should be asked to disclose the source of their information for publishing the items in question. The court placed reliance for deciding the issue on 19

20

Attorney-General v. Mulholland and British Steel Corpn v. Granada Televilion Ltd.. The court held that it was not necessary to discuss the facts of those two cases because the same were entirely different from the facts in the present case. However, the ratio of the two decisions is to the effect that Press does not have an absolute privilege not to disclose the source of information on the basis of which the news item has been published. The journalists or the information media have no absolute immunity or obligation to disclose their source of information in court when asked for to do so. However, it is not in every case that the Press must be asked to disclose the source Before the Court directs the disclosure of source it must satisfy itself that it is in the nature of justice and is not against the public interest It will 17

Explanation to Sec 132A would read as: a) Publication - any speech, writing, broadcast or other communication in whatever form which is addressed to the public at large or any section of the public. b) Source – means the person from whom or the means through which the in formation was obtained. 18

Manoj Mitta, „ No Legal Cover For Journalists Refusing To Divulge Source’, April 2, 2012, Times of India. Available at: http://timesofindia.indiatimes.com/india/No-legal-cover-for-journalists-refusing-to-divulgesource/articleshow/12499518.cms 19

, 1963 (1) All England Reports 767

20

1981 (1) All England Reports 417.


10


necessarily depend on the nature of the case and the offending item of the news published. 1986(11) 2.2.2 JAVED AKHTAR V. LANA PUBLISHING COMPANY PRIVATE

21

In this case in the issue of a magazine called "Star Dust" for the month April 1987 an article was been published by defendants on the plaintiff, who is a famous script writer and his wife, who is famous actress . The article makes comments on the plaintiff and his wife which, according to the plaintiff, are highly defamatory. In this case the plaintiff had claimed damages of Rs. 25 lakhs for defamation. In the case the plaintiff also wants defendant 3, Nishi Prem, who is the author of this article to disclose an affidavit the names of these persons referred to as 'Starwife" Industrywalla,' 'Industrywalls' and 'Unitwall' of the film unit of Mr. India." whose comments were said to have been reproduced in the article. In this case the defence argued that a journalist should not be directed to disclose his source of information and took the plea of the "Newspaper Rule"

22

under which, in an action for

libel or slander, a newspaper cannot be asked to disclose the source of its information at an interlocutory stage. It was held that it is undoubtedly true that a disclosure of a newspaper's source of information should not be ordered if such disclosure would be injurious to public interest. Freedom of the media to investigate and report on matters which are of public interest is essential to a free society. As a result, information which would otherwise not be available is made available to the public. If the name of a person who gives confidential information to a newspapers is required to be disclosed by the newspaper, it is possible that a newspaper's sources of information may dry up and the public would not have the benefit of

22

The principle is well established and recognized in England. Also t his rule was accepted as well established way back in 1888 in the case of Hennesey v. Write (No. 2 (1888) 2 4 QBD 455). Also the Press Council Act, 1978 enshrines the “Newspaper rule” in section 15(2) of the act.


11


disclosure of matter which are of public importance. But this protection can be extended only when the information or material published is of public importance, as for example, if the information relates to malpractices in a government organisation. Even information relating to the private life of a public figure may be of public importance if such information has a bearing on the manner in which the public figure discharges his duties or if such information reflects on the suitability of such a public figure to hold the office that he occupies. But, unless it can be shown that the information is such as needs disclosure and publicity in public interest, there is no reason for extending any special protection to the source of everything which may be published in a newspaper, periodical, journal or any other publication. Thus, in this the court holding that the article does not disclose any information which can be said to be of public importance of public interest. The article merely comments or public interest. The article merely comments on the private life of a film script writer and his actress wife. It has no bearing on any matter of public importance. The disclosure of names asked for is directly material to the plaintiff's case. It is not a case where any special protection needs to be given to the third defendant. There is no investigative journalism involved here, which may be of value to an open and free society. The court thus ordered disclosure the name of the sources from which the reporter had gathered information within a period of four weeks. 2.2.3 COURT ON ITS OWN MOTION VS THE PIONEER

23

In this case an article titled “Court hampering drive against construction mafia” was ublished by a daily newspaper named Poineer on 7.09.96. Upon pursual of the said newspaper report, the Court on 18.10.1996 suo motto issued notice to the reporter, Mr Rahul Pandey and the editor of the Newspaper to show cause as to why proceedings of contempt of court should not be initiated against them for publication of the said news report. The reporter was asked by 23

1997 IIAD Delhi 552, 68 (1997) DLT 259, 1997 (41) DRJ 564


12


the courted to disclose the source of information and any notes, etc thereby. In this case the reporter/respondent argued that a reporter/journalist should not be compelled to disclose the name of the Government functionary interviewed by the correspondent. This he submitted was essential to protect and preserve the sources of information and for effectually exercising the freedom of the press. It was submitted that if the source of information was not protected, the same would dry up and gathering of news would become impossible and the freedom of Press would become an empty shell. Reliance was also placed on Section 15(2) of the Press Council Act. In this case it was held that the court has the power to direct disclosure of the source of information, when considered necessary in the interest of justice. 2.2.4 Dr. S. KRISHNA RAO VS USHODAYA PUBLICATIONS

24

In this case defamatory statement published by the defendant in Eenadu Telugu Daily dated 21.10.1981. According to the news item the plaintiff was involved in the act of outraging the modesty of a nurse in Kotturu Primary Health Centre, by name, Vanaja. Since the plaintiff claimed that the news item was false and lacked veracity on account of it being unsupported by facts. However, the defendant claimed that the news item published in Eenadu Daily was based on information received from reliable sources and the defendant never had nor has any malice towards the plaintiff. It was mentioned in the news item that the staff in the hospital informed the reporter that the appellant so as to compel the staff nurse to submit herself encouraged the accused to commit the alleged act. In this case it was at the request of the staff members alone, anonymity was maintained, in order to protect their identity. It thus became the obligation of the reporter or journalist, to protect the anonymity of the persons who furnish information which is of public interest. If their names were to be disclosed no person would come forward to give the necessary information either for fear of being

24

2008 (2) ALD 819


13


proceeded against or unnecessarily dragged in any litigation. Therefore the anonymity of such persons who furnish such information needs to be protected by the journalist? The court quoted settled law on the point from the Text Book on Law of Torts by Ratanlal and Dhirajlal, at Page 249 “Newspapers are not compelled to disclose the source of their information at an interim stage in answer to interrogatories. This rule is known as the "newspaper rule" and has been applied in India. But except in respect of administration of interrogatories, newspapers have never been held to enjoy the privilege of not being compellable to disclose the sources of their information. The Courts have no doubt an inherent wish to respect the confidentiality of information between a journalist and his sources, but the journalists and the information media have no privilege protecting them from the obligation to disclose their sources of information if such disclosure is required by the Court in the interest of justice.” It was thus held that at the initial stage the anonymity of the persons who furnished information shall be protected. But at a later stage when such a disclosure is required in the interest of justice, journalists and information media cannot claim any privilege in regard thereto.


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CHAPTER III 3.1 JOURNALISTIC PRIVILEGE IN OTHER COUNTRIES 3.1.1 JOURNALISTIC PRIVILEGE IN UNITED STATES

3.1.1.1 FEDERAL COURTS STAND ON JOURNALISTIC PRIVILEGE Developments in the USA with reference to journalistic privilege have been very extensive. The only time the Supreme Court squarely faced the reporter‟s privilege issue was in 25

Branzburg v. Hayes ,. The case arose out of four grand jury investigations

26

In this case Branzburg argued that, were he to testify before the grand jury, “his effectiveness as a reporter would be greatly damaged”

27

and that he should be excused from testifying in

any manner since his confidential relationship with sources would be jeopardized.

28

Therefore, the petitioners argued overall that: “to gather news it is often necessary to agree either not t o identify the source of information published or to publish only part of the facts revealed, or both; that if the reporter is nevertheless forced to reveal these confidences to a grand jury, the sources so identified and other confidential sources of other reporters will measurably deterred from furnishing publishable information, all to the detriment of the free flow 25

Branzburg v. Hayes, 408 U.S. 665 (1972).

26

i) Two grand juries were convened to investigate reports in the Louisville, Kentucky Courier-Journal on the local drug trade. Branzburg v. Pound , 461 S.W.2d 345 (Ky.Ct. App. 1970); Branzburg v. Meigs, 503 S.W.2d 74 (Ky.Ct.App. 1971). ii) The third grand jury investigation involved a Massachusetts grand jury‟s investigation of a television journalist‟s coverage of the internal planning of protests by the Black Panther movement. In re Pappas, 358 Mass. 604, 266 N.E.2d 297 (1971). iii) The fourth investigated reporting on the Black Panther movement by New York Times reporter Earl th Caldwell. Caldwell v. U.S., 434 F.2d 1081 (9 Cir. 1970). 27

Id at 670.

28

Id at 671.


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DYNAMICS OF JOURNALISTIC PRIVILEGE: A STUDY 29

of information protected by the First Amendment.”

The Court held that journalists have no constitutional privilege to refuse to testify before a grand jury, unless the grand jury investigation was “instituted or conducted other than in good faith.” 30 The court reasoned that the public‟s interest in prosecuting crime outweighed 31

its interest in journalists‟ being permitted to preserve their confidential relationships.

While majority opinion in this case unambiguously denied reporters a privilege to protect their sources in federal court, the concurring and dissenting opinions have often been scrutinized and cited. In his concurrence, Justi ce Powell stated that the majority‟s holding was “limited” in nature.

32

Justice Powell also wrote that “no harassment of newsmen will be

tolerated” and that “if a newsman believes that the grand jury investigation is not being conducted in good faith he is not without remedy.” Justice Powell further stated that if a journalist believes that he is being forced to disclose a confidential source in an instance where legitimate law enforcement purposes are not believed to be served, the journalist can seek to quash the subpoena.

33

Thus, while the majority seems to have held that journalists must disclose confidential sources when subpoenaed to do so, Justice Powell seems to indicate in his concurrence that a balancing test of interests exists to determine whether a journalist should be compelled to testify. 3.1.1.2 INDIVIDUAL STATES STAND ON JOURNALISTIC PRIVILEGE 29

Id at 679-680. Id . at 707.

30

31

The Supreme Court further noted in this case that there was “merit in leaving s tate legislatures free, within First Amendment limits, to fashion their own standards” regarding journalists‟ privilege. In addition, the court noted that “[i]t goes without sa ying, of course, that we are powerless to bar state courts from responding in their own way and construing their own constitutions so as to r ecognize a newsman‟s privilege, either qualified or absolute.” at p. 709 32

Justice Powell observed that while the dissenters may think otherwise, the majority opinion did not in effect make the news media an investigative arm of the government” Id. at 709 33

Id. At 709-710.


16


As stated previously, federal courts have refused to recognize a journalist privilege. According to the Congressional Research Service, “[t]he various state statutes range in scope, from broad protections that provide an absolute journalistic privilege, to shield laws that offer a qualified privilege.”

34

As of 2007, thirty-three states and the District of Columbia have passed shield laws. In many of the remaining states, a journalist privilege is recognized in court decisions.35 3.1.2 JOURNALISTIC PRIVILEGE IN UNITED KINGDOM

THE COMMON LAW RULE

A cardinal rule of journalistic ethics in England is that a journalist does not divulge sources of his information but the common law rules of evidence did not give journalists a privilege of refusing to answer certain questions in evidence until 1981. Lord Denning while deciding Attorney General v. Mulholland & Foster

36

had observed that professional rule cannot be

elevated into a legal rule. Given that until the passing of The Contempt of Court Act, 1981 there is was legal journalistic privilege in Common law protecting Journalists from disclosure. However, it is interesting to note that English judicial dicta had even in the absence of a statutory provision giving effect to Journalistic privilege recognised its significance by stressed on the need to balance the public interest in the disclosure of truth and the public interest in the maintenance of professional confidence. Two important cases where issue of journalistic privilege was discussed before the 1981 legisaltion:1) Attorney General v. Clough

37

34

CAREY LENING & HENRY COHEN, CRS REPORT FOR CONGRESS: JOURNALISTS‟ PRIVILEGE TO WITHHOLD INFORMATION IN JUDICIAL AND OTHER PROCEEDINGS: STATE SHIELD STATUTES (2005), http://www.fas.org/sgp/crs/secrecy/RL32806.pdf 35

Id. at 2.

36 37

(1963) 1 All ER 767. (1963) 1 All ER 420.


17


The court though denied the existence of any legal privilege to a newspaper reporter in respect of source of his information, the judge added, “it still…….would remain open to this court to say in the special circumstances of any particular case that public policy did demand that journalist should be immune…” 2) Attorney General v. Mulholland In the Court of Appeal, Lord Denning while speaking of clergymen, journalists, bankers, doctors commented, “the judge will respect the confidence which each member of these honourable profession receives in course of it, and will not direct him to answer unless not only it is relevant but also it is a proper and necessary question in the course of justice to be put and answered.” In this case, Justice Donovan added that on the facts of a particular situation, a trial judge should exercise a discretion not to compel a journalist or a doctor to reveal information “received under the seal of confidence” where the judge concludes “that more harm than good would result from compelling a disclosure or punishing a refusal to answer.” BALANCING TEST BY THE ENGLISH COURTS WHILE IMPARTING JOURNALISTIC PRIVILEGE:

The English courts in the case of British Steel Corpn.j v. Granada Television Ltd.

38

where

Plaintiffs had instituted an action to discover the name of the informant who sent various confidential papers & information pertaining to British Steel Corpn. to Granada Television which were used of by Granada Television in one of its broadcasts held that the person who betrayed the confidentiality reposed in him by his employer was certainly a wrong doer. The Court had to weigh the public interest in brining the wrong-doer to book as against the public interest in not having the source of information disclosed. It held that the public interest in bringing the wrong doer to book outweighed other public interests.

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(1981-1 All ER 417)


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PASSING OF THE CONTEMPT OF COURT ACT, 1981

In 1981 the Contempt of Court Act was passed whereby Journalistic privilege or Reporters privilege was recognised by way of a statutory provision to that effect. Section 10 of the Act reads as No court may require a person to disclose, nor is the person guilty of contempt of court for refusing to disclose the source information contained in the publication for which he is responsible, unless it is 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

Thus the section provides than that in a free and democratic society there is a need to protect journalistic sources and presumes in favour of those journalists wishing to protect their sources. There are however four exceptions to this presumption where disclosure of the information will be deemed to be necessary. The exceptions are as follows:











In the interests of Justice In the interests of National Security For the prevention of disorder For the prevention of crime In the interests of Justice

Whether disclosure of a journalistic source will be deemed to be in the interest of justice is dependant upon the facts of the particular case. Courts are very reluctant to establish that disclosure is in the interest of justice and will often only be found in cases where exceptional circumstances where vital public or individual interest are at stake. 3.1.3 ECHR Goodwin v. the United Kingdom

39

39

22 Eur. Ct. H.R. 123, ¶¶ 10-11 (1996), http://cmiskp.echr.coe.int/tkp197/view.asp?item=1&portal=hbkm&action=html&sour ce=tkp&highlight=Goodwin%20%7C%20v.%20%7C%20United%20%7C%20Kingdom&sessionid=4893507sk in=hudoc-en.


19


Article 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms, which is followed by the European Court of Human Rights, states that everyone is entitled to the right to freedom of expression and that “this right shall include freedom to hold opinions 40

and to receive & impart information and ideas….”

Article 10 also includes qualifier which

provides when the government can interfere with these freedoms.

41

This landmark decision

concerned a journalist, Mr. Goodwin, who in 1989 attempted to publish a story based on confidential information he received by a previously reliable source, concerning the financial difficulties of a particular company. The information was derived from the company's confidential financial plan, and was presumably stolen. Fearing a loss of confidence on the part of the company's creditors, suppliers and customers, the company obtained an injunction restraining publication and an order under section 10 of the Contempt of Court Act 1981 for disclosure of the anonymous source "in the interests of justice". The company claimed that it wished to take legal action against the source. The disclosure order was upheld by the English Court of Appeal and the House of Lords. Before the European Court, Mr. Goodwin and the Commission argued that under the Convention, a journalist may only be forced to reveal his sources in "exceptional" circumstances where "vital" public or individual interests were at stake. Noting that an injunction was in force preventing publication, Mr. Goodwin and the Commission argued that no such circumstances existed here.

40

Article 10 (1)provides: 1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of br oadcasting, television or cinema enterprises. 41

Article 10(2) provides these freedoms can be interfered “The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the i nterests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary”


20


In the Government's view, the information at issue did not possess a public interest content which justified interference with the rights of a private company, and despite the injunction, the company remained at risk of damage due to the possibility of dissemination of the information to the business community. The Government also argued that a journalist's privilege does not extend to the protection of a source that has conducted itself in bad faith, or at least irresponsibly, in order to allow him to pass on such information with impunity. In finding for the applicant, the Court emphasised the importance of affording safeguards to the press generally and to the journalists' sources in particular. It said:

Protection of

journalistic sources is one of the basic conditions for press freedom.... Without such protection, sources may be deterred from assisting the press in informing the public on matters of public interest. As a result the vital public-watchdog role of the press may be undermined and the ability of the press to provide accurate and reliable information may be adversely affected. Having regard to the importance of the protection of journalistic sources for press freedom in a democratic society and the potentially chilling effect an order of source disclosure has on the exercise of that freedom, such a measure cannot be compatible with Article 10 of the Convention unless it is justified by an overriding requirement in the public interest. The Court was of the view that the company's interest in acting against the source was insufficient to outweigh the vital public interest in the protection of the applicant's source. Goodwin is an important judgment both because of its strong recognition of the importance the safeguarding of sources has for a free press and because it sets a standard that must be adhered to by all of the states party to the ECHR. Moreover, Goodwin is the only case decided by an international tribunal specifically on the protection of journalists‟ sources and for that reason it is likely to have influence beyond its European borders.


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3.1.4 QUALIFIED PRIVILEGE IN THE INTERNATIONAL CRIMINAL TRIBUNALS

Court of Bosnia and Herzegovina, War Crimes Tribunal (Ct.BiH) is the only international court that explicitly provides for journalistic privilege stating that, a person who by his statement would violate the duty of keeping professiona l secrets, including….professional journalists for the purpose of

protecting information source‟, may not testify unless such journalist has been released from that duty „by a special regulation or statement of the person who benefits from the secret being kept.‟42 However, the journalistic privilege is not exclusive to the Court of Bosnia and Herzegovina, War Crimes Tribunal (Ct.BiH) . The International Criminal Tribunal for the former Yugoslavia (ICTY) grants war correspondents a privilege against testifying to what they regard as confidential 43

information.

The Appeals Chamber of the Internationa 1 Criminal Tribunal for Former

Yugoslavia (ICTY) has stated that “war correspondents may be issued subpoenas to testify if the following two-prong test is satisfied: „First, the petitioner party must demonstrate that the evidence sought is of direct and important value in determining a core issue in the case; Second, it must demonstrate that the evidence sought cannot reasonably be obtained 44

elsewhere.

This standard was developed as a result of Washington Post reporter Jonathan

Randal‟s refusal to testify for the prosecution in a war tribunal. Randal, now retired from the newspaper, reported on the war in the Balkans and was called to testify to his knowledge of war crimes to which he had been exposed during the course of his reporting.

42

45

The intended

Court of Bosnia and Herzegovina, War crimes Chamber Criminal Procedure Code Art. 82(c )

43

Emily Ann Berman, Note, In Pursuit of Accountability: The Red Cross, War Correspondents, and Evidentiary Privileges in International Criminal Tribunals, 80 N.Y.U. L. REV. 241, 241 (2005). 44

Prosecutor v. Brdaninand Talic (Decision on Interlocutory Appeal) IT-99-36-AR73.9 (11 December 2002) [50]; cf. United States v. Cuthbertson, 630 F.2d 139, 148 (3d Cir. 1980) [41] held that „journalists posses s a qualified privilege not to divulge confidential sources and not todisclose unpublished information in their possession in criminal cases.‟. 45

Prosecutor v. Brdaninand Talic ,para 11: Randal argues that “the public interest served by such journalistic privilege lies in the “outstanding benefits for international criminal justice” that derive from media coverage in combat zones -namely, that it provides important information about international conflicts, including alerting to the commission of war crimes, and that it provides evidential material for prosecutorial investigation of war crimes. These benefits would be curtailed if journalists were routinely compelled to give evidence before international criminal courts against those they have observed and/or interviewed. According to Randal, the consequences of routine compellability would be that: (i) journalists‟ independence would be undermined and journalists would have fewer opportunities to conduct interviews with officials with superior authority,


22


purpose of having a qualified rather than a full privilege is to allow international humanitarian tribunals the ability to conduct investigations as to humanitarian violations, 46

rather than have their role restricted.

Additionally, the reasoning behind recognizing a

qualified privilege is to enable journalists to preserve confidentiality, except in extenuating circumstances. Therefore, “the cumulative effect of these decision and policies is overwhelming international support for the proposition that, absent compelling reasons to the contrary, journalists should be permitted to maintain confidentiality.”

particularly in conflicts that are ongoing, (ii) journalists would as a collective profession be put at risk of greater harm and danger, including exposing their sources to such risk and, as a result therefore, (iii) the amount of information that conflict zone reporters are able to produce, including specifically information about possible crimes against humanity, would tend to dry up.” 46 Supra note 38


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CHAPTER IV 4.1 CONCLUSION

Professor Stone suggested in his testimony to Congress that perhaps the need for an absolute privilege would thwart the function of the courts and that a qualified privilege might be the best. A rule that limits the privilege (a) when the government can convincingly demonstrate it needs the information to prevent an imminent and grave crime or threat to the national security or (b) where the disclosure is unlawful and does not substantially contribute to public debate seems to me to strike the right balance. It unduly sacrifices neither compelling law enforcement interests nor the equally compelling interests in promoting a free and independent press and a robust public disclosure.

47

The approach of Professor Stone is the

most conducive approach to treat the issue of Journalistic privilege. The approach does not comprise on either of the two dynamic concerns with respect to Journalistic privilege. The Law commission Report has also made an attempt to treat the subject of Journalistic Privilege with elasticity. The importance of vesting discretion with the court to balance the need of protecting the confidentiality of the source of information was recognised by the Law commission of India while the conferment a privilege was withheld. Thus the recommended provision would only provide protection against disclosure of source of information where such information was received in confidence.

47

Reporters’ Sheild Legislation: Issues and Implications.(Statement of Prof. Geoffrey R. Stone)


24


The researcher after studying the approach of Indian Judiciary towards Reporters privilege or journalist Privilege and stand of Courts in other legal systems as well as the statutory provision where journalistic privilege has been explicitly or implied recognised feels that the approach of the Contempt of court Act, 1981 is very dynamic and addresses the issue in a comprehensive manner by addressing the issue of contempt of court in cases where the journalist refuses to disclose information, since refusal of disclosure of source of information would invariably be followed by contempt of court proceeding. However Article 82(c ) of 48

Ct.BIH CPC

provides an even more comprehensive blanket protection to journalistic

privileges by structuring the privilege in a way so as to accord protection not only to journalistic source of information but also undisclosed information and any other information the disclosure of which shall violate the duty of confidentiality. It was provides scope for waiver of such duty by way of special regulation or statement from the person who benefits from such secret being kept. In India, High Courts have, despite the legislative void on the subject of journalistic privilege, recognised the importance of journalistic privilege principle and have endorsed the balancing of interest approach which dealing with cases that involving disclosure of journalistic sources. A harmonious study of the protection scheme under S ection 10 of English Contempt of Courts Act, 1981 and Article 82 (c ) of Ct.BiH CPC yields forth the essentials of journalistic privilege to match the dynamics of present times. Unlike the Law commission which recommended that no special privilege should be conferred on journalists, the need of present time is of conferment of a qualified privilege which ensures that journalists are accorded legal protection from testifying their information sources where they fear violation of confidentiality. Such privilege will have two fold effect – the qualified nature of such privilege will be conducive in ushering responsible journalism and the privilege in itself will

48

See supra note 42


25


ensure accountability in democratic institutions. Thus approach while structuring journalistic privilege has to one that: a) Accords a privilege to the journalist to not testify, disclose or make statements which he has received in confidence and he fears his statement or disclosure would violate his duty of confidentiality that he owes to the person who has communicated such information or through whom such information has been obtained; b) Protects the journalist from being tried for contempt of court for refusing to disclose source or testify or even make statement that would amount to disclosure; c) Balances the public interest by providing the grounds on which such privilege can be interfered with for eg in the interests of justice or national security or for the prevention of disorder or crime.

Recognising Journalistic privilege is crucial for the simple reason that in the present era

the way we seek and access information is changing and this change has made Journalism an essential key of information pursual and for journalism to subsist such privilege is inevitable. Further, in the wake of pandemic spread of white collar crimes, corruption and other anomalies in the social fabric the importance and significance of Investigative journalism is re-established and thus justifying the conferment of journalistic privilege.


26


REFERENCES/WORKS CITED Books/ Papers 1. Thomas Carlyle, On Heroes, Hero-Worship, & The Heroic In History 141 (Michael K. Goldberg Et Al. Eds., 1993) (1840). 2. James Redmond, Media Organization Management , Second Edition, Dreamtech Press (2004) 3. On Evidence § 2192, At 71 (John T. Mcnaughton Ed., 1961) 4. Carey Lening & Henry Cohen, Crs Report For Congress: Journalists‟privilege To Withhold Information In Judicial And Other Proceedings: State Shield Statutes (2005), 5. Jeffrey S. Nestler, The Underprivileged Profession: The Case For Supreme Court Recognition Of The Journalist’s Privilege. University Of Pennsylvania Law Review, Vol. 154, P. 201, 2005 6. Emily Ann Berman, Note, In Pursuit Of Accountability: The Red Cross, War Correspondents, And Evidentiary Privileges In International Criminal Tribunals, 80 N.Y.U. L. Rev. 241, 241 (2005). 7. Reporters’ Sheild Legislation: Issues And Implications.(Statement Of Prof. Geoffrey R. Stone) Reports/ Newspaper Articles 8. Law Commission Of India, Ninety-Third Report On Disclosure Of Sources Of Information By Mass Media, September 1983 9. Manoj Mitta, „ No Legal Cover For Journalists Refusing To Divulge Source’, April 2, 2012, Times Of India. 10. Adam Liptak, Reporter Jailed After Refusing To Name Source, N.Y. Times, July 7, 2005, At A1. Websites 11. http://Asne.Org/Kiosk/Archive/Principl.htm 12. http://Www.Fas.Org/Sgp/Crs/Secrecy/Rl32806.Pdf ( 13. http://Assembly.Coe.Int/Main.Asp?Link=/Documents/Workingdocs/Doc10/Edoc1244 3.htm#P19_81 (Report Of Committee On Culture, Science And Education , The Protection Of Journalists’ Sources) MEDIA LAW SEMINAR PAPER

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14. http://Www.Article19.Org/Data/Files/Pdfs/Publications/Right-To-ProtectSources.Pdf (Briefing Paper On Protection Of Journalists' Sources Freedom Of Expression Litigation Project, May 1998.)


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Media Law Seminar Paper

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