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Media Law Seminar Paper
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 ................................................................................................................... 22 CHAPTER IV .......................................................................................................................... 24 4.1 CONCLUSION .............................................................................................................. 24 REFERENCES/WORKS CITED ............................................................................................ 27
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 figure of speech, or a witty saying; it is a literal fact,very momentous to us in these times. . . . Whoever can speak, speaking now to the whole nation, becomes a power, a branch of government, with inalienable weight in law-making, in all acts of authority.1 -Thomas Carlyle, 1840
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 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
Thomas Carlyle, On Heroes, Hero-Worship, & The Heroic In History 141 (Michael K. Goldberg et al. eds., 1993) (1840). Adam Liptak, Reporter Jailed After Refusing to Name Source, N.Y. TIMES, July 7, 2005, at A1.
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)
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Jeffrey S. Nestler, The Underprivileged Profession: The Case For Supreme Court Recognition Of The Journalists Privilege. University of Pennsylvania Law Review, Vol. 154, p. 201, 2005 Available at ssrn: http://ssrn.com/abstract=761867
1.2 NEED FOR JOURNALISTIC PRIVILEGE 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 newspapers, or national or international television companies, routinely depend on nonjournalists 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 which might adversely affect their physical safety or job security.6 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 an attorney for a party to a lawsuit or a criminal defendant, or a prosecuting attorney, or even the judge himself, seeks information from a journalist, either in court or in a deposition. If the journalist disobeys, he faces contempt citation. But if he complies, a host of journalistic
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
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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
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)
Law Commission of India, Ninety-Third Report on Disclosure of Sources of Information by Mass Media, September 1983, p. 4
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Saltman Engineering Co. Ltd. V. Campbell Engg. Co. Ltd. (1948) 65 RPC 203 (CA). Supra note 8 at p. 6.
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18 WIGMORE ON EVIDENCE 2192, at 71 (John T. McNaughton ed., 1961) (citing 12 PARL. HIST. ENG. (1742) 643, 693.
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Blackmer v. United States, 284 U.S. 421, 438 (1932) (Hughes, C.J.).
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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.
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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.
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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-divulgesource/articleshow/12499518.cms
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, 1963 (1) All England Reports 767 1981 (1) All England Reports 417.
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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.
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1997 IIAD Delhi 552, 68 (1997) DLT 259, 1997 (41) DRJ 564
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3.1.1.1 FEDERAL COURTS STAND ON JOURNALISTIC PRIVILEGE Developments in the USA with reference to journalistic privilege have been very extensive. The only time the Supreme Court squarely faced the reporters 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 damaged27 and that he should be excused from testifying in any manner since his confidential relationship with sources would be jeopardized.28 Therefore, the petitioners argued overall that: to gather news it is often necessary to agree either not to
identify the source of information published or to publish only part of the facts revealed, or both; that if the reporter is nevertheless forced to reveal these confidences to a grand jury, the sources so identified and other confidential sources of other reporters will measurably deterred from furnishing publishable information, all to the detriment of the free flow
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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 jurys investigation of a television journalists 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).
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Id at 670. Id at 671.
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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 publics interest in prosecuting crime outweighed its interest in journalists being permitted to preserve their confidential relationships.31 While majority opinion in this case unambiguously denied reporters a privilege to 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 majoritys 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 journalist believes that he is being forced to disclose a confidential source in an instance where legitimate law enforcement purposes are not believed to be served, the journalist can seek to quash the subpoena.33 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 balancing test of interests exists to determine whether a journalist should be compelled to testify. 3.1.1.2 INDIVIDUAL STATES STAND ON JOURNALISTIC PRIVILEGE
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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 newsmans privilege, either qualified or absolute. at p. 709
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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 governmentId. at 709
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Id. At 709-710.
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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 absence of a statutory provision giving effect to Journalistic privilege recognised its 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:1) Attorney General v. Clough37
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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
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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 bringing the wrong doer to book outweighed other public interests.
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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 information will be deemed to be necessary. The exceptions are as follows:
In the interests of Justice In the interests of National Security For the prevention of disorder For the prevention of crime In the interests of Justice
Whether disclosure of a journalistic source will be deemed to be in the interest of justice is 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 circumstances where vital public or individual interest are at stake. 3.1.3 ECHR Goodwin v. the United Kingdom39
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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.
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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
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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 Article 10 of the Convention unless it is justified by an overriding requirement in the public 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 decided by an international tribunal specifically on the protection of journalists sources and for that reason it is likely to have influence beyond its European borders.
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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 Internationa1 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 Randals 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
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Court of Bosnia and Herzegovina, War crimes Chamber Criminal Procedure Code Art. 82(c )
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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).
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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..
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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,
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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. 46 Supra note 38
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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 such information was received in confidence.
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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 Investigative journalism is re-established and thus justifying the conferment of journalistic privilege.
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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: Journalistsprivilege 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 Journalists 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) Reports/ Newspaper Articles 8. Law Commission Of India, Ninety-Third Report On Disclosure Of Sources Of Information By Mass Media, September 1983 9. Manoj Mitta, No Legal Cover For Journalists Refusing To Divulge Source, April 2, 2012, Times Of India. 10. Adam Liptak, Reporter Jailed After Refusing To Name Source, N.Y. Times, July 7, 2005, At A1. 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/Edoc1244 3.htm#P19_81 (Report Of Committee On Culture, Science And Education, The Protection Of Journalists Sources)
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