THE scope of the planned federal shield law for journalists’ sources has been dramatically widened by the Greens, who have persuaded the government to extend the scheme beyond the traditional news media.
The federal shield law will still create a rebuttable presumption that journalists’ confidential sources will be legally protected, but the government has made changes to ensure it is “technology neutral”.
Anyone “engaged and active” in the publication of news in any medium will be considered to be a journalist and will be able to claim protection for their sources.
The changes, which were approved by the Senate on Thursday, triggered a warning from opposition legal affairs spokesman George Brandis.
While endorsing the need to protect journalists’ sources, Senator Brandis said the changes supported by the government and the Greens had given the term “journalist” a meaning that was too broad.
“It says to every person in society that, whether they are journalists or not, if they are seeking to publish or bring to public awareness a fact which they assert to be a newsworthy fact, they should have a presumptive privilege,” Senator Brandis told the Senate.
He said this was not the protection of journalists’ sources, but the protection of communication between people that resulted in one of them publishing news. Any form of privilege meant withholding information from courts and should therefore be done as conservatively and narrowly as possible, he said.
Justin Quill of legal firm Kelly Hazell Quill said the changes would make no practical difference to journalists working for mainstream media.
The great benefit of the scheme for the mainstream media was that the shield law would shift the onus of proof so those seeking disclosure of a source would need to prove their case.
Mr Quill believed the changes could make it possible for bloggers and people such as WikiLeaks founder Julian Assange to claim protection for their sources but each case would need to be examined by a court.
Media lawyer Veronica Scott of Minter Ellison said the scheme that had been passed by the Senate was quite different to the original, more limited shield law bill drawn up by independents Nick Xenophon and Andrew Wilkie and endorsed by the government.
“It now extends the protection of sources to anybody who sends news by the internet and I query what news means in terms of this broadened definition of journalist,” Ms Scott said.
She said the expanded definition meant anyone who published information that had been disclosed to them could be protected from not having to disclose the identity of their source.
Ms Scott believed the practical effect of the Greens’ changes would be to encourage judges to apply another part of the shield law more rigorously when deciding whether the presumption in favour of protecting sources should be overturned.
“You will have a court opening up a much broader line of inquiry in relation to what is the public interest and the competing considerations as to whether that source’s identity should be disclosed, potentially developing case law that could broaden the attack on your traditional journalists’ sources,” Ms Scott said.
She accepted that there were arguments in favour of protecting confidences, but she believed the shield law might not be the appropriate mechanism.
Many “citizen journalists” seeking to claim its protection could fail because they may not have extended a promise of confidentiality.
“If there is no promise, there is no shield,” Ms Scott said.