Protection Against Judicially Compelled Disclosure of the Identity of News Gatherers' Confidential Sources in Common Law Jurisdictions
| Author | Janice Brabyn |
| Date | 01 November 2006 |
| DOI | http://doi.org/10.1111/j.1468-2230.2006.00616.x |
| Published date | 01 November 2006 |
Protection Against Judicially Compelled Disclosure of the
Identity of News Gatherers’ Con¢dential Sources in
Common Law Jurisdictions
Janice Brabyn
n
In many common law liberal democracies today, news gatherers are resisting e¡orts to use the
powers of the courts to compel them to identify their con¢dential sources. Often the struggles
are epic. Often the public interest in e¡ective news gathering fuelling the vitality of a modern
liberal democracy is insu⁄ciently recognised.The article uses recent cases to spotlight the short-
falls in the approach and legacy of the common law in de aling with news gatherer/con¢dential
source relationships.Post Human Rights Act English decisions, especially that of Tugendhat J in
Ackroyd, combining European stylecommitment to the public interest in vigorous newsgather-
ing with common law style analysis ofevidence, point the way to a more e¡ective approach.US
and Hong Kong cases remind news gatherers of their public interest responsibilities.
INTRODUCTION
The professional codes of journalists’
1
associations in liberal democratic
2
common
law jurisdictions
3
typically contain a statement to the e¡ect that a journalist must
protect the identity of a con¢dential source.
4
Clearly, these codes create a profes-
sional obligation not to disclose source i nformation in response to questions not
backed by judicial orders or freestanding statutory obligations to answer.
5
Although not members of a professional body, other news gatherers frequently
acknowledge similar obligations. Uncompelled disclosure might also amount to
n
Departmentof Law,University of HongKong. Iwis hto thank the refereesfor their constructiveand
very helpful comments.
1 Narrowlyde¢ ned as‘a person employed to write for, edit, or report for a newspaper, journal or
news cast’ in D. Thompson (ed), Concise Oxford Dictionary of Current English (Oxford: Clarendon
Press,9
th
ed,1995),commonly used to include freelance contributors of articles as well.
2 Referringto jurisdictions committed to self governance by a free people.
3 Referring to those jurisdictions that recognize judgemade law within the Englis h traditionand
in contrast to code jurisdictions.
4 See for example,The American Society of Newspaper Editors ‘. . .pledges of con¢dentiality to
news sources must be honored atall costs. . .’; Press Complaints Commission Code of Practice,
clause 14: ‘Journalists have a moral obligation to protect con¢dential sources of i nformation’,
quoted in Ackroyd(2) (n 24 below);Code of British National Union of Journalists (19 94): ‘A jour-
nalist shall protect con¢dential sources of information’reproduced as Item 7 of the Code of Ethics
of the Hong KongJournalists Association; AustralianJournalists Association and the MEAA/AJA
Standard19:‘Keepco n¢dences in good faith.’ The Canadian Association of Journalists: Guidelines
for Investigative Journals, approved 2004, http://www.caj.ca/principles/principles-statement-
investigative-2004 (last vi sited 25 October2005), is more detailed and sophisticated.
5 Absent such professionalobligations, news gatherers would have the same rightas everyone else
to choose whether to answer otherpeople’s questions, seeViscount Dilhorne in British Steel Cor-
poration vGranadaTelevision Ltd [1981] AC1096,1181H^1182A.
r2006 The Author. JournalCompilation r2006 The ModernLaw Review Limited.
Published by BlackwellPublishing, 9600 Garsington Road,Oxford OX4 2DQ,UK and 350 Main Street, Malden, MA 02148, USA
(2006) 69(6)MLR 895^934
a breach of contract or, in the US, found an action for promissory estoppel.
6
But
what if a judge issues a subpoena, witness order or search warrant, or orders dis-
covery, the administration of interrogatories or the production of documents, in
each case with the object of identifying a news gatherer’s con¢dential source?
What if a statute requires anyone with certain information to disclose that infor-
mation and its source, and a news gatherer receives such information from a
source in con¢dence?
7
What are the news gatherer’s obligations then?
If the judicial order or legislation withstands procedural, substantive and constitu-
tional challenge, their legal obligation must be to comply with the order or law. The
health of a liberal democracy requires that the rule of law applies to news gatherer
citizens as much as any other. But under what circumstances do judges in liberal
democratic common law jurisdictions make orders like these? Have judges found
such orders to be constitutionally valid according to the freedom of expression or
free pressguarantees in such jurisdictions? Shouldliberal democracies provide special
protection against judiciallycompelled disclosure of the identities of news gatherers’
con¢dential sources? This article addresses each of these three questions.
They are questions that are currently being debated in legislatures and the
media,and fought over in courtrooms and commissionsof inquiry in many parts
of the common law world.
8
Five illustrative cases provide a useful focus.
In re GrandJurySubpoena,Judith Miller/MatthewCooper
9
US Court of Appeals for
the District of Columbia
Earlyin 2004, a special prosecutor and a federal grandjury began investigatingthe
possiblyillegal
10
naming of a covertCIA operative to several journalists, i ncluding
reporters MatthewCooper (Timemagazine) and Judith Miller (NewYorkTimes)
by sources described as ‘top White House o⁄cials’.
11
The sources may have
intended to discredit or punish the operative’s husband,
12
whose publ ic revelations
about his CIA sanctioned investigation into alleged Iraqi attempts to obtain ura-
6Cohen vCowles Med ia Co 501US 663 (1991); Ruzicka vConde Nast PublicationsIn c999 F. 2d 1319
(8
th
Cir 1993). Surely, disclosure in obedience to a court order would not be actionable,George G.
Ventura vThe CincinnatiEnquirerand Ganett CompanyInc 396 F.3d784.
7 For example,the Terrorism Act 2000, s19 (UK).
8 In addition to the more than 25 post 2000 cases otherwise mentioned herein see: ITN,‘Legal
Landmark’at http://www.channel4.com/news/2004/02/week_2/13_ruling (last visited 25 October
2005), describing the con£ict between Lord Saville, Chairman of the UK Bloody Sunday
Inquiry and Independe ntTelevision News, reporter Alex Thomson and the n producer Lena Fer-
guson; Canada (Attorney General) vJuliett O’Neill [2004] O.J. No. 4649, 2004 On.C LEXIS 5106
continued in Canada (AttorneyGeneral) vO’Ne ill 2005 CarswellOnt 2115 198C.C.C. (3d) 143; Rv
Canadian BroadcastingCorp 2006 CarswellOnt1119; Kennedy vLovell [2002] WASCA 217 (a Royal
Commission/contemptcase); In re Special Proceedings 373F.3d37(1
st
Cir 2004) (TimTaricani’scase);
cases noted by Bill Kenworthy in ‘Ongoing con¢dential-sources cases’ (08.04.05) at http://
www.¢rstamendmentcenter.org/analysis.aspx?id=15634(last visited 23 March 200 6).
9 Strictlycited as In re GrandJury Subpoena(Miller) 397 F 3d 964.
10 See, for example,Intelligence Protection Act of 1982, 96 Stat.122.
11 A term used in media accounts and quoted in In re GrandJury Subpoena n 9 above, 966 per Circuit
Judge Sentelle.
12 Cooper suggested this, ibid,1003perCircuit Judge Tatel.The sources implied that the husband had
been given the investigativetask through some i nappropriate in£uence from the operative.
Con¢dential Sources and Judicially Compelled Disclosure
896 r2006 The Author. Journal Compilation r2006 The Modern Law ReviewLimited.
(2006) 69(6) MLR 895^93 4
nium in Africa had undermined part of President Bush’s 2003 State of the Union
Address.
13
The special prosecutor subpoenaed Cooper, Miller and Time Inc,
Cooper’s employer, demanding disclosure of the identity of the sources. All
refused to comply.
14
On 15 February 2005, the US Court of Appeals for the Dis-
trict of Columbiadismissed their consolidated appeals against consequential¢nd-
ings of civil contempt.
15
An application for a rehear ing en banc was rejected.
16
The
US Supreme Court denied certiorari on 27 June 2005.
17
Time Inc then produced
Cooper’s ‘notes, tape recordings, e-mails and other documents’ as ordered.
18
Cooper later testi¢ed when released from con¢dentiality commitments by his
source.
19
Miller was sent to jail for civil contempt on 6 July 2005.
20
AshworthHospital Authority vMirror Group Newspapers Ltd
21
House
of Lords
An English newspaper published an article critical of a secure mental health hos-
pital run by Ashworth Hospital Authority (AHA). The article included quotes
from hospital PACIS records about a controversial patient.
22
On the basis that
the records were highly con¢dential medical records probably leaked by an
13 ibid,966per JudgeSe ntelle.
14 Historically,for Miller see In re:Special Counsel InvestigationMisc No 04-407(TFH) 338 F. Supp.2d
16 (rejection of motion to quash subpoenas); In Re Special Counsel Investigation 2004 US Dist
LEXIS 1842 (D.D.C., Sept. 15, 2004) (contempt holding). For Cooper see In re: Special Counsel
Investigation 346 F.Supp. 2d 54; 2004 US Dist LEXIS 23241(Nov.10, 2004) and ibid,966^967 for
other dates.
15 In re GrandJury Subpoena n9above.
16 See In re GrandJurySubpoenaJudithMiller No. 04 -3138 consolidated with04 -3139,04-314020 05US App
LEXIS 6608; MatthewCooper vUS 04-1508 20 05 US LEXIS 5191.
17 Supreme Court of theUnited States Order List 545 US for Monday, 27 June 2005,10;Judi th Miller
vUS 04- 1507, 2005 US LEXIS.
18 B. Saporito,‘When to GiveUp a Source’ 11July 2005 Time at http://www.time.com/time/archive/
preview/0,10987,1079501,00 (last visited 25 October 2005).
19 M. Cooper,‘What I told the Grand Jury’ 25 July 2005 Time Archive at http://www.time.com/
time/archive/preview/0,10987,1083899,00(last visited 25 October 2005).
20 Editorial,‘JudithMil ler Goes to Jail’ 7 July 2005 NY Times,Section A, 22. Miller was released on
29 September 2005,after agreeing to testify and handover notes about her relevantconversations
with I. Lewis Libby, chief of sta¡ for VicePresident Cheney on the following day. Miller claimed
she agreed after receivinga voluntary waiverfrom her source, S.Schmidt, J.VandeHei,‘N.Y.Times
ReporterReleased From Jail:Mil ler toTestifyin CIA Le ak Probe’ 30 September 2005 Wa s h i ng t o n
Post, A01. Libby was subsequentlycharged with obstruction of justice and perjury o¡ences. He
also subpoenaed Cooper and Miller, amongst others, requesting a wide range of documentary
material ^ but was only permitted to obtain certain article drafts from Cooper, ‘In re Special
Counsel Investigation (Valerie Plame investigation)’ at http://www.rcfp.org/shields_and_
subpoenas.html (last visited 7 August 2006).
22 PACIS refers to a computer database known as ‘Patient Administrative and Clinical Information
Service, Ackroyd 2 n 24 belowat [23]. Ackroyd denied the PACIS records were ‘medical records’,
describing them as a ‘diary’ in his articles, otherwise as a hospital administrative log, M. Holder-
ness,‘Sources in Peril’January 2003 Freelance at http://media.gn.apc.org/£/o3 01whis. (last visited
10October 2005). However, the HL in Ashworthn 21above, the CA in Ackroyd (1) n 26 below and
Tugendhat J in Ackroyd (2)n 24 below,the latter two after having seen the full records, all accepted
them as medical records.
Janice Brabyn
897
r2006 The Author. JournalCompilation r2006 The ModernLaw Review Limited.
(2006) 69(6) MLR 895^93 4
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