Professional Documents
Culture Documents
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DYNAMICS OF JOURNALISTIC
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PRIVILEGE: A STUDY
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DYNAMICS OF JOURNALISTIC PRIVILEGE: A STUDY
Contents
TABLE OF CASES...................................................................................................................3
CHAPTER I...............................................................................................................................4
1.1 INTRODUCTION.......................................................................................................4
1.2 NEED FOR JOURNALISTIC PRIVILEGE...............................................................5
CHAPTER II..............................................................................................................................7
2.1 JOURNALISTIC 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..................11
2.2.3 COURT ON ITS OWN MOTION VS THE PIONEER.........................................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...................................................................................................................21
CHAPTER IV..........................................................................................................................24
4.1 CONCLUSION..............................................................................................................24
REFERENCES/WORKS CITED............................................................................................27
TABLE OF CASES
Caldwell v. U.S.,
Coco v. Clark
Hennesey v. Write
In Re Pappas
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
times. . . . Whoever can speak, speaking now to the whole nation, becomes a power, a
1.1 INTRODUCTION
On July 6, 2005, Pulitzer Prize-winning New York Times reporter Judith Miller was jailed
for refusing to disclose the identity of a confidential source to a federal grand jury, 2 making
her one of a number of journalists imprisoned recently for adhering to the canons of their
profession.3 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
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 the 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)
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
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
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
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
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
the judge himself, seeks information from a journalist, either in court or in a deposition. If the
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
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
ethics question arise: A reporter/journalist who reveals sources’ name soon may have no
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
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
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)
CHAPTER II
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
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
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.
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
[T]he public has a right to every man’s evidence, a maxim which in its proper sense cannot
be denied.12
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.).
The exceptions provided under Indian law to the general obligation of giving evidence are the
following privileges15:
2) Under Indian Evidence Act:Sec. 121: Matters relating to conduct of judges or coming
Sec. 126 & 129: Communications between a legal adviser and a client;
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
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.
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
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
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 information 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-divulge-
source/articleshow/12499518.cms
19
, 1963 (1) All England Reports 767
20
1981 (1) All England Reports 417.
necessarily depend on the nature of the case and the offending item of the news published.
1986(11)
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
newspaper's sources of information may dry up and the public would not have the benefit of
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
21
22
The principle is well established and recognized in England. Also this rule was accepted as well established
way back in 1888 in the case of Hennesey v. Write (No. 2 (1888) 24 QBD 455). Also the Press Council Act,
1978 enshrines the “Newspaper rule” in section 15(2) of the act.
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
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
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
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
the courted to disclose the source of information and any notes, etc thereby. In this case the
23
1997 IIAD Delhi 552, 68 (1997) DLT 259, 1997 (41) DRJ 564
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
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
such persons who furnish such information needs to be protected by the journalist?
24
2008 (2) ALD 819
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
"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
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.
CHAPTER III
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
Branzburg v. Hayes25,. The case arose out of four grand jury investigations26
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
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
Caldwell. Caldwell v. U.S., 434 F.2d 1081 (9th Cir. 1970).
27
Id at 670.
28
Id at 671.
29
Id at 679-680.
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
protect their sources in federal court, the concurring and dissenting opinions have often been
scrutinized and cited. In his concurrence, Justice 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
where legitimate law enforcement purposes are not believed to be served, the journalist can
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
testify.
According to the Congressional Research Service, “[t]he various state statutes range in scope,
30
Id. at 707.
31
The Supreme Court further noted in this case that there was “merit in leaving state legislatures free, within
First Amendment limits, to fashion their own standards” regarding journalists’ privilege. In addition, the court
noted that “[i]t goes without saying, of course, that we are powerless to bar state courts from responding in their
own way and construing their own constitutions so as to recognize 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.
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
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 & Foster36 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
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:-
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
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
(1963) 1 All ER 767.
37
(1963) 1 All ER 420.
open to this court to say in the special circumstances of any particular case that public
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
In this case, Justice Donovan added that on the facts of a particular situation, a trial
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.”
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
38
(1981-1 All ER 417)
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
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
3.1.3 ECHR
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
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=4893507skin=hudoc-en.
and to receive & impart information and ideas….”40 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
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
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
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 broadcasting, 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 interests 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”
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
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
for that reason it is likely to have influence beyond its European borders.
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 professional 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
information.43 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
elsewhere.44 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.45 The intended
42
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 possess 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,
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.”
rather than have their role restricted.46 Additionally, the reasoning behind recognizing a
overwhelming international support for the proposition that, absent compelling reasons to the
46
Supra note 38
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
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
47
Reporters’ Sheild Legislation: Issues and Implications.(Statement of Prof. Geoffrey R. Stone)
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
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 Section 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
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
48
See supra note 42
his duty of confidentiality that he owes to the person who has communicated such
b) Protects the journalist from being tried for contempt of court for refusing to disclose
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
privilege.
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)
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/Edoc12443.htm#P19_81 (Report Of
Committee On Culture, Science And Education, The Protection Of Journalists’
Sources)
14. http://Www.Article19.Org/Data/Files/Pdfs/Publications/Right-To-Protect-
Sources.Pdf (Briefing Paper On Protection Of Journalists' Sources Freedom Of
Expression Litigation Project, May 1998.)