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Australian judge gives controversial interpretation of “newspaper rule” protecting journalists’ sources

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Australian judge gives controversial interpretation of “newspaper rule” protecting journalists’ sources

According to the Guardian the main reason for the judge’s decision was that the Fairfax journalists in question had published documents against the source’s wishes, what undermined the trust that is the principle underlying the "newspaper rule” that allows publishers not to reveal sources at the preliminary stage of judicial proceedings.

It should be noted that one relevant reason for the judge’s final decision to uphold the refusal of Fairfax stay application  - one that the Guardian mentions in passing - was the extreme delay with which Fairfax elected to request the remedy, in the words of the judge causing a possible "enormous waste of judicial time and resources” (paragraph 218).

The case is indeed interesting for its analysis of the so called “newspaper rule”, which protects the identity of newspaper sources from disclosure in the discovery process. Importantly, the court denied the existence of a principle of "absolute protection in the confidentiality of journalists’ sources”. The judge explained that “protection of a journalist’s sources is not a right or an end in itself but, rather, a consideration to be weighed in balancing the public interests that the law of defamation seeks to achieve” (see paragraphs 123 and 297 of the decision).

The Court rejected Fairfax’s argument that the newspaper rule always prevented the disclosure of a journalist's confidential source when the information provided regarded matters of government or politics. The judge specified that the rule was one of practice, not of evidence, and far from conferring an absolute immunity on the confidentiality of sources, it should be applied or not by the court following a discretional assessment of the conflicting interests in the case at hand.

The judges decided to not grant the “newspaper rule” in the case because in their opinion the disclosure of sources better served justice, in this defamation case that had to do with alleged forgery. 

All in all, the case in question has been a “long and expensive process”, as the Guardian notes, and the outcome so far seems driven more by Fairfax procedural missteps and failed court strategy than anything else.

The specificities of this case aside, the protection of sources remains a fundamental condition for independent journalism. Exceptions should be kept to an absolute minimum and - in the case they need to be made at all - should only be sanctioned as a result of the clear instruction of an independent judicial proceeding that has followed internationally proscribed standards.



Elena Perotti's picture

Elena Perotti


2016-06-02 11:39

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