Judicial Perception of the Media: Protecting or Disclosing Journalists' Sources as a Case-Study

This paper explores the extent to which judicial perceptions of the media inform and affect judicial decision-making on the important issues of journalists’ disclosure of their sources.

At common law, it is well-established that journalists enjoy no special privilege against disclosure of their sources. The common law takes the view that journalists' ethical constraints and undertaking of confidentiality given to sources must yield to disclosure to the court. Recently in Australia, there have been legislative developments creating forms of privilege for journalists against disclosure of sources. None of these is absolute in terms. They are all qualified. The tests to be applied are open-textured, requiring a balancing of competing interests, albeit with a disposition against disclosure.

This paper argues that both the common law approach and the statutory tests, as articulated and applied by courts, are revealing about how judges view the media, their roles and their conduct. Using a number of cases by way of example, this paper explores the extent to which, and how, these judicial perceptions of the media inform and affect judicial decision-making on the important issues of journalists' disclosure of their sources.

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David Rolph

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