As explored in our recent article, Can journalists really promise anonymity to their sources?, the legal basis on which a journalist can protect the identity of an ‘anonymous’ source has been the subject of some significant developments in certain Australian jurisdictions.
In this article, we seek to compare two recent decisions which provide an opportunity to compare the effect of the old ‘newspaper rule’ against the more modern statutory ‘journalists’ privilege’. The statutory ‘journalists’ privilege’ now exists in relation to actions brought to compel disclosure of a source’s identity made in Victoria, New South Wales, Western Australia, the Australian Capital Territory, and the Federal Court.
Liu v The Age (Liu)
In February 2010, The Age published a number of articles alleging that Ms Helen Liu had made payments to a former defence minister.
The allegations were supported by quotes from documents claiming to be Liu’s personal and business records. Liu’s case was that the quoted documents were forgeries or had been falsely attributed to her. Accordingly, Liu sought orders for preliminary discovery from the Age to uncover the identity of those said to have provided the records to the Age, in order to commence proceedings for defamation against them.
In Liu v The Age Company Limited  NSWSC 12, McCallum J allowed the application for preliminary discovery. Justice McCallum cited Cojuangco, where the High Court held that a court will refuse an order for preliminary discovery in respect of a defamatory publication if it appears that the applicant has an effective remedy against the newspaper or journalist without the necessity for making such an order.
Justice McCallum found that as The Age had pleaded a qualified privilege defence, and that this defence ‘might well succeed’, the plaintiff may not then have an effective remedy against the defendants (i.e. Liu will have been defamed, but left with no compensation by The Age due to the operation of the defence). Accordingly, her Honour found that it was necessary in the interests of justice that The Age give discovery of all documents in its possession which related to the identity of the sources.
In 2015, in a further effort to protect the confidence of its sources, The Age sought a stay of the discovery order by seeking to relinquish its qualified privilege defence. Importantly, McCallum J was persuaded by this concession and ‘abandonment of a substantive right’ by The Age, and found that by doing so, Liu would have an ‘effective remedy’. Her Honour ordered that ‘upon the giving by each defendant of an undertaking to the Court not to rely on any defence of qualified privilege … the decision entered on 2 February 2012 is stayed’.
Liu successfully appealed this decision to the New South Wales Court of Appeal.
Justice McColl, with whom Beazley and Ward JA agreed, found that the primary judge had failed to take into account a number of factors which were relevant ‘to the question on whether the stay application was an abuse of process or should otherwise be disallowed because it offended principles as to permitted litigation of an interlocutory matter and/or case management principles’.
On the question of whether Liu nevertheless had access to an effective remedy, McColl JA found that despite the abandonment of the qualified privilege defence, there was a ‘real risk’ of Liu’s case failing if ‘she was unable to test fully the issue of the forgery of the documents which formed the basis of the matters complained of’.
The Age again sought special leave to appeal to the High Court, however this was refused by French CJ, Bell J and Keane J on 16 December 2016.
Madafferi v The Age (Madafferi)
In Madafferi, the plaintiff claimed that he was defamed by imputations conveyed in twelve articles published by The Age.
The articles involved allegations of criminal misconduct and, among other things, alleged that the plaintiff was the head of the mafia. Mr Madafferi sought further and better particulars of the defences, including details of the journalists’ sources. The Age refused to supply the particulars and relied on s 126K and on the newspaper rule.
To defeat The Age’s reliance on s 126K, Mr Madafferi was required to establish that the public interest in disclosure of the identities of the sources outweighed both:
any likely adverse effect of the disclosure on the sources or any other person; and
the public interest in the communication of facts and opinions to the public by the news media and the ability of the news media to access sources of facts.
The principal issues, according to Dixon J, were whether:
Mr Madafferi would be denied an effective remedy if The Age was not compelled to reveal its sources; and
the public interest in disclosure was affected by the impact of non-disclosure of sources on Mr Madafferi’s ability to challenge The Age’s qualified privilege defence.
Justice Dixon found that it was likely that the sources would suffer if an order for disclosure was made, and that there was a significant and substantial public interest in the communication of facts and opinions on these particular matters.
Further, and importantly, Dixon J found that the plaintiff was not significantly disadvantaged by the references to confidential sources in understanding how the defendants will contend at trial that they acted reasonably (when relying on the qualified privilege defence).
Accordingly, Mr Madafferi’s application was dismissed.
It is worth noting that, in contrast to the publications in Liu, the references in the articles to confidential sources in Madafferi were found by Dixon J to be ‘not prominent, but a thread in the fabric of the qualified privilege defence, along with identified sources and proven facts, assertions of careful adherence to prudent journalistic practice and the ethical code, and the public interest’.
However, an analysis of the two decisions makes clear that the statutory journalists’ privilege does real work in bolstering the protections that journalists so often give to their sources.
The statutory rule does this in two ways:
By creating a clear ‘public interest’ test that requires the Court to compare the public interest in disclosure outweighs the public interest in the communication of facts to the news media; and
By clearly imposing the onus of proof in relation to any prospective applicant seeking orders revealing the identity of any given source, which will provide for a practical bar against frivolous or baseless applications.