On bloggers and journalist shield laws

Peter Timmins reviews the progress through the Senate (or rather lack of same) of a proposed limited “shield” law to protect the confidentiality of journalists’ sources.

As Peter noted, I gave evidence and made a submission to the Senate Legal and Constitutional Committee on the Bills (there are two versions; one drafted by Andrew Wilkie and one by Liberal Senator George Brandis).  In general I strongly support the Bill/s.  Indeed the purport of my submission was to advocate a much broader journalist shield law, protecting sources not only when journalists are giving evidence before a court but at all stages of litigation and outside it as well e.g. when considering applications for search and other warrants and when police seek to access journalists’ telephone records – something which at present does not even require a warrant.

However one area where I opposed widening of the Bill’s ambit was in relation to an amendment proposed by Greens Senator Scott Ludlam which would extend the journalist shield law to cover bloggers and other “citizen journalists”, by protecting those engaged in “journalism” irrespective of whether they are professional journalists.  My submission on that aspect is set out over the fold, albeit that I expect it won’t endear me to some bloggers:

I note that there has been some media publicity about the possibility of extending the protection of these bills to cover amateur bloggers and “citizen journalists” rather than just professional journalists. To the extent that this may be a live issue before this Committee, I do not support such an extension.

Although bloggers and “citizen journalists” might sometimes engage in journalism in the true sense, which may on very odd occasions involve exposing public sector wrongdoing based on “leaks” to them from public servants, bloggers are not journalists in the relevant sense.

Although professional journalists are not subject to professional disciplinary proceedings or potential deregistration for breach of their code of ethics, the profession nevertheless has a code of ethics which possesses strong moral or persuasive force.  Moreover there is a clearly identifiable peer group or “community of practice” whose disapprobation may be expected to be a powerful force in ensuring or at least encouraging journalists to behave ethically in relation to their obligation of confidentiality of sources.  The journalists’ code also requires a journalist to conduct an ethical weighing process before agreeing to give an undertaking to keep a source’s identity confidential:

19. Aim to attribute as precisely as possible all information to its source. When a source seeks anonymity, do not agree without first considering the source’s motive and any alternative attributable sources. Keep confidences given in good faith.

None of these constraints, relatively informal though they are, apply to bloggers or citizen journalists.  In my view it is the reasonable expectation that journalists will act ethically in pursuit of the public interest in exposing public sector wrongdoing which properly permits Parliament to extend a legally enforceable immunity to relationships of confidence into which they may enter.  No such expectation exists in relation to bloggers, nor can they be regarded in any meaningful sense as a profession or even an identifiable group let alone “community of practice” with common ethical or professional standards.

The current controversy over Wikileaks’ mass document dumps illustrates the extent to which bloggers and other informal “social media”  are not subject to any meaningful ethical or other constraints.  See this post by Legal Eagle for a good discussion of some of the legal issues surrounding Wikileaks and this earlier one at The Monthly where John Birmingham skewers Julian Assange’s pretensions.

BTW I acknowledge that journalists’ ethics are not infrequently honoured in the breach by at least some journalists, but I don’t think that invalidates my point that they are at least subject to meaningful constraints that simply don’t apply to bloggers.

About Ken Parish

Ken Parish is a legal academic, with research areas in public law (constitutional and administrative law), civil procedure and teaching & learning theory and practice. He has been a legal academic for almost 20 years. Before that he ran a legal practice in Darwin for 15 years and was a Member of the NT Legislative Assembly for almost 4 years in the early 1990s.
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Ian Milliss
Ian Milliss
10 years ago

Ah yes, journalism’s code of ethics, forever honoured in the breach.

Legal Eagle
Legal Eagle
10 years ago

I certainly don’t see myself as a journalist, and I wouldn’t have “sources” in the same sense that a journo would, so I’d support your analysis, Ken.

Tel
Tel
10 years ago

Moreover there is a clearly identifiable peer group or “community of practice” whose disapprobation may be expected to be a powerful force in ensuring or at least encouraging journalists to behave ethically in relation to their obligation of confidentiality of sources.

How exactly do you identify this clearly identifiable peer group?

LexMedia Australia
10 years ago

Great post – perhaps this calls for a bloggers code of ethics?

http://www.lexmedia.com.au/search/label/evidence%20amendment%20%28journalists%27%20privilege%29

LexMedia Australia

Daily Magnet
10 years ago

“Although bloggers and “citizen journalists” might sometimes engage in journalism in the true sense, which may on very odd occasions involve exposing public sector wrongdoing based on “leaks” to them from public servants, bloggers are not journalists in the relevant sense.”

I am both a journo and blogger, and I respectfully disagree with your point of view, Ken. I can tell you that adequate and equal protections for all variations of independent media are really quite essential, especially where there is a lack of media diversity (such as WA and SA) to act efficiently as the Fourth Estate(responsible for public sector scrutiny).

Further, the more duress mainstream journalists are under by pervasive newsroom cultures of corruption(eg. bribes, coercion, editorial biases, or threats to your job security) or social/ethical malaise, the more important it becomes for independent voices to have protection and even more important for their sources.

Another thing one must consider here, is that if laws only protect MSM journos and the MSM only/predominantly employs middle-class white people, then all other writers would be thrown to the wolves.

Publication laws pertain to bloggers and independent writers(remember Jeremy Malcolm’s legendery precedent?)so the protections should, also. There can be no effective distinction between bloggers and journalists. So, Scott Ludlam’s proposals would ensure a fairer/safer work environment for all alternative and independent media outlets which have employees or contributors who may not fall within the typical mainstream definition of journalists.

Photographers and fixers also need protection under the same laws. Sometimes in order to be able to really scrutinize the government journos need to work outside of the stranglehold of its spin and such workers absolutely need protection – more than most.