Disclosure Of Sources Of Information By Mass Media

[Cites 24, Cited by 0]

Law Commission Report

Disclosure Of Sources Of Information By Mass Media

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DISCLOSURE'OF-SOURCESDF MFORMATION

} iBY%MAss~MEb1Af

Septembei',1983 % 4

LAW COMMISSION OF INDIA

JUSTICE K. K. MATHEW
D.O. NO. F. 2(2)/83-L.C.

SHASTRI BHAVAN
NEW DELHI
SEPTEMBER, 9, 1983.

My dear Minister,

1 am forwarding herewith the Ninety-Third Report of the Law
Commission on "Disclosure of Sources; of Information by Mass Media".

2. The subject was taken up by the Law Commission on its own. The
need for taking up the subject is explained in Chapter I of the Report.

3. The Commission is indebted to Shri P. M. Bakshi, Part-time
Member and Shri A. K. Srinivasamurthy, Member-Secretary, for their
valuable assistance in the preparation of the Report.

With regards.

Yours sincerely,
Sd/-
(K. K. Mathew)

Shri Iagannath Kaushal,
Minister of Law, Iusticc 8: Co. Affairs,
New Delhi.

Encl. 93rd Report.

1-443 LADIND/83

CHAPTER
CHAPTER
CHAPTER

CHAPTER
CHAPTER
CHAPTER
CHAPTER
CHAPTER
CHAPTER

\O%\lO'\U1-b

CONTENTS
INTRODUCTORY . . . . . .

THE LEGAL OBLIGATION TO GIVE EVIDENCE

EVIDENTIARY PRIVILEGES IN INDIA, AND THEIR
RATIONALE . . . . . . . .

ENGLISH LAW .

COMMONWEALTH COUNTRIES. . .

POSITION IN THE UNITED 'STATES

THE ISSUES FOR CONSIDERATION. . . . .
COMMENTS RECEIVED ON THE WORKING PAPER .

RECOMMENDATIONS . . . . . . .

(iii)

PAGE

CHAPTER I
INTRODUCTORY

L1. This Report deals with 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 sourms of information acquired
by him in conﬁdence for the purpose of his profession. This, of course, is
a broad formulation of the question that is proposed to be dealt with in
this Report. There are several subordinate issues that are also proposed
to be considered in this context. The question pertains to the law of evidence,
but obviously a consideration thereof necessitates an examination of many
other ﬁelds of law. The question has been taken up by the Law Commission
of India, mo mom, having regard to its importance and relevance to current

thinking.

1.2. For a long time, there has been going on a debate whether
journalists' should be given a right to refuse to disclose in court the source
of their information. According to the present position on the subject,

(as will be evident from the ensuing discussion),2 no such 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 rule
of professional conduct has not so far received recognition in law courts or
in statutory provisions in India.

1.3. The justiﬁcation for considering reform of the law on the subject
is mainly sought to be derived from the Circumstances in which, and the
conditions on which, information is obtained by the journalist. As a rule,
when a journalist wishes to use information obtained professionally by him,
he normally credits the source by name, with such further identiﬁcation as
may be necessary to establish the validity of the speaker's knowledge.'
However, to this general position, there are certain exceptions. In a study
undertaken by the International Press Institute, the position was stated as
under, a few years ago :'

"Very few reports appear in print without some specific attribution
to source. This is regarded as essential if the reader is to be able to
form a proper judgment of the weight to be given to a particular
statement. But there are exceptions. They are infrequent, but may
be important. There are times and circumstances.................. when

- an informant may not wish to be identiﬁed, as the source of a statement.
To the journalist who has established himself as a reliable reporter,
accurate and responsible in his approach to his task, the 'sourcc'.may
nevertheless be willing to provide certaininformation with the under~
standing that it will not be attributed to him."

The informant, (as was explained in the above study) may have good
reason for wishing to remain anonymous. It may be a personal reason, but
perfectly understandable and legitimate. There may even be a reason
bearing some direct relation to the public welfare. If the tource really

1 Thg expression "journalist" is used for the sake of brevity. Other persons responsible
. for any publication may also stand on the same footing.

2. Paragraphs 2.3 and 3.2, infra.
3. International Press Institute, Survey No. 6, Professional Secrecy and the Journalist

(Arno Press). (1972)-
1

Scope. and
genesis.

Position in law.

Journeali stic
practice.

The move for
reform .

Report on the
Evidence Act.

Scheme of
discussion.

Wished to remain anonymous and if the journalist considered the information
worthy of use, he would use it without directly attributing the information
to a particular source.

The question that arises for consideration is whether the law should
recognise the practice followed by journalists and incorporate it as a privilege
that could be claimed if the journalist is called upon in a court of law
(or other authority having legal power to compel a witness to testify).

1.4. The present position in this regard, as already stated,' is that
there is no such privilege except in countries where it is conferred specifically
by statute. The position has been modiﬁed in certain countries, though
not in India. However, even in countries where such a reform has been
mooted, legislation in this direction has been rather slow. Thus, 1n a case
that arose before the English court of Appeal,2 Lord Iustice Scarman (as
he then was), speaking in the context of an application for the production
under summons of an unpublished television ﬁlm, observed that "while
the law offered the press and the broadcasting authorities some protection
against oppressive application it was arguable that more protection was
needed." He expressed the view that this was a problem for law reform.
However, no such reform was, until very recently, eﬁected in England}
In fact, it may be mentioned that a journalist in England who refused to
reveal his sources of information when ordered to do so by a judge was
proceeded against for contempt of court. Fortunately, it was found in this
case that the answer to the question was not relevant and necessary to the
issue before the Court. The journalist was, therefore, held to be not guilty.'

1.5. Incidentally, it may be mentioned here that the Indian Evidence
Act, 1872, which codiﬁed the law of evidence in India, has been reviewed'
by the Law Commission in a comprehensive Report. But the particular
question now under consideration had not presented itself before the
Commission at that time. v

1.6. In the present Report, it is proposed to deal ﬁrst with the existing
law in India or the subject, and next with the position in a few selected
countries. The issues that require consideration will then be formulated,
followed by our concrete recommendations for amendment of the law.

Paragraph 1.2, supra.

Souier V. Haldguarh. (1975) 2 All E.R. 1009, 1022.

For the present English law, see Chapter 4, infra.

A.G. V. Indian. The Times. Pub. 20. 1982.

Law Commission oi India, 69th Report (Indian Evidence Act. 1872).

?'.''''!''5''!''

CHAPTER 2
THE LEGAL OBLIGATION TO GIVE EVIDENCE

2.1. It is well settled that there is a general legal obligation upon all T":itf°§°'al
persons to give evidence in court concerning relevant facts. This obligation P0 0 '
has been regarded as essential to the administration of justice.' Coupled
with this obligation is the obligation to answer all questions relating to
relevant facts ; without such an. obligation, the judicial enquiry, it is postu-
lated, could not be completed successfully.

2.2. A few exceptions to this general obligation (that is to say, the The °" W503'-

obligation to give evidence and to answer all relevant questions), have been
created in most common law countries, based on considerations of public
policy. However, it may be stated that the exceptions have been narrowly
framed and the common law has been rather rigid in creating new
exceptions.

. 2.3. In common with most common law countries, the Indian legal Indian 14'-
system also postulates that every person is bound to answer all questions
held to be relevant by the court, unless there be applicable a speciﬁc legal
provision conferring immunity on the ground of public policy.

2.4. It is not necessary for the present purpose to enumerate all these The privilege'-
exceptions, or to catalogue the recognised evidentiary privileges. The "' law'
question immediately for consideration is whether, to the list of such
privileges, disclosure of the source of information obtained by a journalist
in conﬁdence should be added. In this context, it should also be pointed
out at the outset, that while the breach of confidence in business and personal
relationships may often be actionable (or, in some cases, even criminally
punishable), the protection of conﬁdence in itself as a basis for creating
an exemption from the obligation to give evidence of the matters concerned
has not so far been the approach adopted in most common law countries.
Whenever, in the sphere of the law of evidence, a privilege has been
recognised in respect of a confidential information, the law has generally
insisted upon the presence of some other elements that would justify the

recognition of an evidenciary privilege.'

2.5. Traditionally, it has been the position of the law3 that the public Right .
has a right to every man's evidence. Obviously, a contrary rule would ;';'cl'r"°r:";n,sev,d_
render orderly legal procedure both frustrating and futile. The interest of cage?
society favours the procuring from each person of relevant facts, in order
to resolve the issue being litigated or investigated. This principle is perhaps

implicitly assumed to be a postulate of fair trial.

As the Supreme Court of the United States has observed,' there is a
long standing principle that the Grand Iury has a right to every rnan's
evidence, "except that evidence which is protected by a constitution, a
common law or statutory privilege." In England, as early as 1612, Lord
Bacon declared5 that "all subjects, without distinction of degrees, owe to
the King tribute and service, not only of their deed and hand, but of their
knowledge and discovery." Therefore, each citizen owed the King unfailing

See further, paragraph 2.5, infra.

See. further. Chapter 3, i'nfra....

Law Commission of India, 69th Report (Indian Evidence Act, 1872), page 627
Bmamgburg v. Haves, (1972) 33 L. Ed 626.

Countess of Shrewsburv's case, (1613) 12 Coke..94; 2 How. St. T1'. 769, 773.

vo-.b.Ln§~>g-

History of
the law in
England.

Position in
India-
general
obligation. 1

Consideration:
of public
policy as
crc itmg
p;-ivilevge

W igmorc's
statement of
the "ationalc.

duty to reveal all his lmowlerlge, including its sources. To this general
principle, the law creates an exception in the public interest, whenever it
grants a privilege in the realm of evidence.

2.6. Historically, the legal obligation to give evidence is fairly old.
In England, by Act of 5 Eliz, Chap. 9, S. I2, provision was made for the
service of process out of any court of record, requiring the person served
to testify concerning any cause or matter pending in the court, under a
penalty of IO besides damages to be recovered by the party aggrieved.'
When it was that grand iuries first resorted to compulsory process for Wit-
nesses, is not clear} But, by 16:2, the obligatiori to give evidence had
come to be recognised. Anti. by flit: Act 7 and 8 Wm. III, Chapter 3.
section "7' (1605), parties intlicatcil l'i)1' tre.:is«m or misprison of treason were
given the like process to cr,»rnpel their witness to appear as was usually
granted to compel witnesses fr: ;llA,'V[)t_?21I' £lff2llE1S[ them: clearly evincing that
process for Crown witricsxes vvas already in use."

Thus, the general obligation to give evidence is well recognised in
Common law systems.

2.7. Speaking broadly, this is the position in India also. Under the
Indian Evidence Act. there is a general obligation on all persons to give
evidence in Court, and to answer all questions held to be relevant by the
court, except in special cases in which the law confers protection.

2.8. No doubt. considerations of public policy have led to the emergence
of certain privileges, available in certain special situation."' In law. a
privilege is an immunity or est-motion conferred by special grant to a certain
class or individual in derogation of :1 common rights' Usually, a privilege
or discihilitv is created by luv «m the ground of some consideration of public
policy. The law exclude-5. or dispenses with, some kinds of evidence on
grounds of public policy. l~er'ause it is thought that greater mischiefs would
probably result from requiring or permitting the admission of such evidence
than from granting a pi-iviletre or creating a disability in respect thereof.
Where privilege is graotctl. it is based upon a recognition that in appropriate
circumstances the nulslic beneﬁts more from protecting the particular relation-
ship, than it is iniurtai by the impediments which such privileges may
cause to the administratir;-n of iustice.

2.0. The situations in which a privilege should be recognised has been
the subicct of much learned discussion. Four conditions must. according to
Wismiore, be fulﬁlled lie.'ore a orivilc;-q«;: against' disclosure should be enacted
in the law of evidence. His .statemc'--it of the position has almost become a
classic. The conditions are: 6

(I) The corrnii:m_i:.,'at'ir>n rnust origiriatie in a confidence that the facts
cornmunicatcd will not be disclosed.

.:__j.. _. ._...

I. See Hnvith/mrjv v_ Ha.r\.'t'v, Cro. Fli7._ of. l. 11 I31. 78 Eng. Rep. 1141 Growin V. West,
Cro. Car. 522, 540. 70 Eng. Rep. 1032-tom (l\/lartrli is. 1640).

Blair V. U.S. (1918) ()3 L. }:'.d.. *)'."'t_ 98?,

Blair V, U.S. (1918) M T Td. 97'). %'.'..

Chapter 3, frzﬂra.

Wabster's New World Dietiorc ll955i, page 1160.

R Wigmore F.videoce ('M'cN"aii;:li'c-n 'Fd. 10613. paragraph 2235.

.°'L~'"."'."N

5
(2) This element of confidentiality must be essential to the full and
satisfactory maintenance of the relationship between parties.

(3) The relation must be one which, in the opinion of the community,
ought to be sedulously fostered.

(4) The injury that would injure to the relation by disclosure of the
communications must be greater than the beneﬁt gained by the
disclosure for the correct disposal of the litigation.

2-443 LAD] ND [83

The 6XC€ptlOnS
to the general
rule.

The binding
thread.

CHAPTER 3
1-LVIDENTIARY PRIVILEGES IN INDIA, AND THEIR iiA'i'ioNALE

3.1. To the geiieral rule that every persoii of sound mind is conipellable
to answer before a Court all questions held by the court to be relevant to
matters under inquiry, a few exceptions are provided by law. There is,
in the first place, :1 coiistitutional privilege zigainst S<,'lf--lnC1'l1IllI1Z1-tlOl],1 no
person accused of an Ci.-pi'Cl1C(,' shall be compelled to be a witness against
himself.

Secondly, under the Evidence Act,2 certain matters are privileged from
disclosure in a court of law. T he provisions on the subject are somewhat
elaborate. It would be convenient to quote from the Report of the Law
Commission on the Evidence Act3, where the matters so privileged were
summarised as under :-----

"<0

(2) communications which are- made to a spouse
(section 122) ;

(3) State secrets (sections 123-124) ;

(4) cominunications between a legal adviser and a client (sections I26
and 129) ;

(5) certain title (leads (sections 129, I31) ; and

(6) certain incriminating matters (section 132)."

matters relatiiig to conduct of judges or coming to the knowledge
of judges, etc. in their judicial capacity (section 121) ;
during marriage

Iournalistic privilege is not recognised in Indian Law. Although there
do not appear to be any reported Indian decisions on the subject, this is a
fairly well established position, and is borne out by at least two incidents
that took place in India in the past, where joiiriialists preferred to court
punishment rather than disclose their correspondents or C()llt1'll)Lll.Ol'S.4 In
one case, Kaliprasanna Kavyabisliarad. editor of the Hitzibadi, declined to
say who was the writer ot a poem published in his paper for which he had
been charged with libel. The manuscript was protlcced in court, but with
the portion in which the name appeared torn off. He was sent to jail for
nine months.5

In the other case, Pepin Chandra Pall was sentenced to six months'
imprisonment, because he refused to depose who was the author of an
article for which Aurobindo (Chose was being tried for sedition. Aurobindo
Ghose was subsequently acqiiitted. Pall was sent to jail for six months5
for refusal to depose as to the above fact.

3.2. In the Report" of the Law Commission on the Evidence Act, the
rationale underlying the various evidentiary privileges was thus stated :~--

"The '>rivile<res recoonised bv the law of evidence difier in their content
but a certain binding tnread seems to connect them. To the explanation

Article 20(3), Constitution of India.

Sections 121-132, Indian Evidence Act, 1872.

Law Commission of India, 69th Report (Indian Evidence Act), page 630, para 62.13.
Note. "Journalistic privilege" (1963) Vol. 1, No. 9, Supreme Court Appeals,
Editorial, "Journalists and their sources" (3lst March, 1980) Vol. 84, C.W.N. 85-87.
Law Commission of India, 69th Report (Indian Evidence Act, 1872), page 628.
para 62.5.

S""-':":"i*°!°!"

. 7

given above-public welfare----may be added. another element, namely, that
most, if not all, of the privileges recognised by «the law are needed for the
proper functioning of the particular relationship. This relationship may be
of various types. It may be don:1estic--as of husband and Wife or profes-
sional---attorney and client----or may be wider--e.g. the Government's
retention of certain information, or it may consist in a particular character
occupied by the person concerned, e.g. tl1e judge privileged under section 121.
The law assumes that the proper performance of the function in question,
or the proper maintenance of the relationship in question, justifies the grant
of an evidentiary privilege in respect of certain matters Which are consi-
dered essential for that function or relationship. It is on this assumption
that the privileges are founded."

3.3. In order to indicate more clearly the common thread underlying
the various privileges, reference was made in the above--mentioned Report'
of the Law Commission to the California Evidence Code, section 910 of
which makes the privileges applicable to "all proceedings"? That section
of the California Evidence Act has the following Explanatory note which
may be helpful for understanding the rationale of evidentiary privileges.
The note was mainly intended to justify the broad application of the privi-
legcs (i.e. their application to administrative tribunals also), but the observa-
tions are of interest for our purposes also, and may be quoted from the
above Report :-----

"Most rules of evidence are designed for use in courts. Generally their
purpose is to keep unreliable or pre-judicial evidence from being presented
to the trier of fact. Privileges are granted, however, for reasons of policy
unrelated to the reliability of the information involved. A privilege is
granted because it is considered more important to keep certain information
conﬁdential than it is to require disclosure of all the information relevant

to the issue in a pending proceeding."

"Thus, for example, to protect the attorney-client relationship, it is
necessary to prevent disclosure of confidential communications made in the
course of that relationship. If conﬁdentiality is to be protected eﬁectively by
a privilege, the privilege must be recognised in proceedings other than judi-
cial proceedings. The protection afforded by alprivilege would be in-
sufficient if a court were the only place where the privilege could be
invoked."3

3.4. The above material has been quoted from the Report of the Law
Commission on the Evidence Act as it touches the heart of the matter
under consideration and addresses itself directly to the core of the rationale
of evidenstiary privilege. In this sense, it is not only very relevant to the
speciﬁc question to be considered now, but may even be described as almost

invoked."3

. . As would have been evident from the position as to privilege

under the Indian Law stated above,' . _ .
recognise any privilege on the part of a yournalist to refuse to disclose the

source of information obtained by him in confidence.

Law Commission of India, 69th Report (Indian Evidence Act), page 628, para 62.6.

2. Section 910, California Evidence Code.
3. Section 910, California Evidence Code, Explanatory notes, quoted in Law Commission
of India, 69th Report (Indian Evidence Act, 1872), page 628, para 62.1..

4. Paragraph 3.1, supra.

The rationale
as dealt

with in

the California
Evidence Code.

Core of the
privllage of
Journalists.

No privilege

the Indian Evidence Act does not in India for

journalists.

Provision in .6. However, mention must be made of the rovision made b the
P . . . . _ . P . Y
'(E"(':un'c°il55Act Press Council Act in relation to inquiries hold by the Press Council under
1978. ' that Act. While section 15(1) of that Act, in line with the general approach

of the law, imposes a legal obligation to give evidence before the Press
Council, sub-section (2) of that section gives a protection to journalists, in

these terms.'
Section 15(2) of the Press Council Act.

"15(2) Nothing in sub-section (1) shall be deemed to compel
any newspaper, news agency, editor or journalist to disclose the source
of any news or information published by that newspaper or received or
reported by that news agency, editor or journalist."

We shall now refer brieﬂy to the position elsewhere on the point at
issue.

1. Section 15(2), Press Council Act, 1978, (37 of 1978).

CHAPTER 4
ENGLISH LAW
1. The Common Law Rule

4.1. English academic and professional literature keeps ethics and law
distinct. A cardinal rule of journalistic ethics in England is that a journalist
does not divulge the sources of his information. Many informants, it is
stated, would "dry up" if they are not conﬁdent that their identity would
be kept secret.'

4.2. But the common law rules of evidence did not give journalists
a privilege (i.e. a right to refuse to answer certain questions in evidence). As
Lord Denning observed, the professional rule cannott be elevated into a legal
rule»? This was clearly laid down in one of the English cases decided in
I 963. It was held that there was no such privilege. In that case, two
journalists were imprisoned for refusing to identify their sources before the
tribunal inquiring into the Vassall Spy Affair? In another case of the same
year, a third journalist was sentenced for similarly refusing to disclose the
source, but escaped his sentence when the source that had supplied informa-
tion to him, came forward." a

In 1975, Gordon Airs of the Daily Accord was ﬁned 500 pounds for
refusing to identify a source when called as a witness in a "Tartan Army"
trial.5

4.3. A journalist may be required to identify his sources before courts,
tribunals of inquiry or a Committee of either House of Parliament. In the
Allighan Affair, the E1/em'ng News Editor was held to be in contempt for
refusing to tell the Committee of Privileges which M.P. had been writing
a political column in his newspaper." No action, however, was taken against
him, nor against Mr. Gordon Greig of the Daily Mail when he withheld
a source from the Committee.

4.4. Some Courts in England used to adopt an authoritarian approach
on the subject. For example, Lord Emsile said in the case relating to
Gordon Airs (Daily Telegraph) :

"Any witness, including any journalist witness, who declines to
answer any competent and relevant question in court, must realise that
he will be in contempt and liable to incur severe punishment."7

In one of the English cases decided in I963,8 Lord Parker told the
journalist : "There must be emergencies in the interests of the State Where
private interests, professional interests and all interests must be subordinated.
Your informant himself is under a duty to come forward and assist the

Anthony Richards, Law for Journalists (1977), page 82,

Attorney General V. Mulholland & Foster, (1963), 1 All E.R. 767.

Attorney General v. Mulholland & Foster, (1963) 1 All. E. R. 767.

Attorney General V. Clough, (1963) 1 All ER. 420.

Anthony Richards Law for Journalists (1977), page 82. See also paragraph 4.4. infra.
infra.

Anthony Richards, Law for Journalists (197'D, page 82.

Anthony Richards, Law for Journalists (1977), page 82. See also Robin Calendar
Smith Press Law (1978), page 127.

S. Attorney General V, Clough 9 (1963) I, All E.R. 420.

".°' !~":'-"E""-'!"'

Journalistic
ethics and
legal position.

The common
law rule.

Power to
dema nd
disclosure
of sources.

Judicial
attitudes.

Oflicial
Secrets Act ,
1920.

Professional
relationships
and its
protection.

Dicta in cases
decided in I963---
The element of
discretion.

ll:

interests of the State. How can you say that there is any dishonour on you
if you do what is your duty as a citizen to put the interests of the State
above everything P".

4.5. There are also in force, in .lingl.n1d, statutory provisions spcci-<
tically rcnjuiring the Lllf~ClOSL1l'0 of certain information. One of them is the
()ﬁ'icial Secrets Act, 19.10, which provides as under :----'

"It shall be the duty of Cvery person to give on demand to a Chief
oflicer of police or to a superintendent or other oflicer of police not
below the rank of Inspector appointed by a Chief officer for the
purposc . . . . . . . . . . .. any information in his power relating to an offence
or a suspected oflence under the [Otiicial Secrets Act, 191 I] . . . . . . . .. and
if any person fails to give such information . . . . . . . . . . .. he shall be guilty
of an offence."

In 1938, Ernest Lewis, a journalist in the Daily ])C'.~'[/JLZZC/2, wrote a
story about a wanted man. The information for this could have come only
from a police officer, whose identity the police wished to know. Lewis
refused to disclose the identity. The Magistrate convicted him under the
Official Secrets Act. Rejecting his appeal, the Lord Chief Iustice observed
that the case was "too plain for argument."2

II. The Judicial attitude

4.6. Occasionally, in England, Iudicial concern for the protection of
certain conﬁdential professional relationships did find expression. Although
there was no legal privilege against disclosure by journalists, one does come
across English judicial dicta laying stress on the need to balance the public
interest .in the disclosure of truth. and the public interest in the maintenance
of professional conﬁdence.

4.7. Two English cases of 1905 may again be re erred to in this
context. In Aft. Gen. v. C/ozrg/2' after the judge of first instance had denied
the existence of any legal privilege to a newspaper reporter in respect of the
source of his information, the judge added that "it still . . . . . . . . . . . . . . . . .. would
remain open to this court to say in the special circumstances of any particular
case that public policy did demand that the journalist should be immune . . . . .."
Again, in Air. Gen. v. M17//zoZZmzd,4 in the Court of Appeal, Lord Denning,
M.R. speaking of clergyrnen, journalists, bankers and doctors, commented
as under :----

"The judge will respect the confidence which each member of these
honourable professions receives in the course of it, and will not direct
him to answer unless not only it is relevant, but also it is It proper and,
indeed, necessary question in the course of justice to be put and
answered."

Lord Iustice Donovan, in the same case} added that, on the facts of a
particular situation, a trial judge should exercise a discretion not to compel
a journalist or a doctor to reveal 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."

Section 6, Official Secrets Act, 1920 (Eng.).

Lewis v. Castle, (1938). 2 K.B. 454.

A21. Gen. v. Clnugli, (1963) 1 All ER. 420, 418.

Azt. Gen. v. Mulhollalzd (1963) 1 All ER. 767, 771, 773; (1963) 2 Q.B. 477, 489, 492.
A.G. v. Mul/zolland (1963) 1 All ER. 767, (1962) 2 Q.B. 477.

':":"E*'!":"

4.8. Mr. lustice lames, when Chairman of the Tribunal investigating Ruling b_y
the collapse of the Vehicle and General Insurance Co., declined to press a 1};[fI'K;lS'fS"°°
.S'zmday Times journalist to reveal how the journalist knew that a Department
of Trade Inspector had been pressing for two years before the collapse of
company. The judge said, "We do not think this is a case Where the
witness should be asked or pressed to go contrary to his belief as :1 member
of his profession."

4.9. However, it should be noted that in a case decidedz in 1977, the House of
House of Lords was divided on the question whether, absent a recognised 33:25,, 19-,-,_
Ground of privilege, judges have the authority asserted in the dicta quoted?'
above from cases of 1963.

4.10. The position was aptly put by Lord Shawcross, who later became Shawcross's
Chairman of the Press Council, in his evidence before the Salmon WW'
Committee :4

"My experience is that a journalist is very rarely asked to disclose
a source unless it is absolutely necessary. If that is the view of the
judge, or of an inquiry tribunal, I think the source ought to be disclosed,
and that the public interest in knowing the source must prevailz"

4.11. In the Parliamentary furore which followed the Mulliollmzcl and é"°"1e3,'
enerals

Fo.c;€r cases} the Attorney General said: Smemem_
"The occasions when a journalist can be required to disclose the
identity of this informant are extremely rare, and do not, in practice,
arise in the ordinary courts. They occur only when it becomes impor-
tant for a tribunal or 21 committee of either House of Parliament to
inquire into the truth of an allegaltion made by a journalist."

He said that the number of times of journalist had been required to
divulge his source in the preceding eighty years was "about six".

4.12. The discussion so far deals mainly with disclosure of the name Disclosure of
of the informant. However, less indulgence is likely to be shown where !§1':31']':'°r'5
an editor declines to name the reporter who wrote a story (as distinct from '
disclorirzg 1!/2e reporter'; 50ztrcc).6

Alan Hitchins, editor of the South London, when called as a witness
at the Old Bailey in 1956, was asked to identify the reporter who wrote a
story. He refused "in view of newspaper practice". Iudge Mande replied :
"Of giving away your informants : I know that. Isn't this rather diﬂerent ?"

Ultimately, Mr. Hitchins named the reporter.7

4.13 In this context, mention must be made of the Grmzadcz case, Gramda

which illustrates several facets of the position. Granada Television, (in a C"5°'Dl5°°"°r-V*'

. . . . . . . . C ﬁd t"l
r'c_levision interview), published conﬁdential and secret material which dealt, 1n'}?,,m°§§i'§'n.

imcr zzlirz, with relations between the Management of the British

Anthony Richard, Law for the Journalists (1977), pages 82-83.

2. D. v. N.S.P. S.C. (1977) 2 W.I..R. 201 : (1977)l A1lE.R. 587-

3_ Paragraph 4.7, supra. I

4. Lord Shawcross._ Evidence before the Salmon Committee; Anthony Richards. Law for

Journalists (1972), pages 80-83.
5. Para. 4.2, supra.

6. Anthony Richards, Law for Joumalists (1977), page 83.
Manchester Guardian, 22nd September, 1956.

Summary of
the position
as to
journalists
in England

(Common law).

iﬁiiglish Act
if I981.

Steel Corporation and the Government. The information and docu-
ments emanated from a very highly placed source Within the British Steel
management. British Steel issued a writ claiming an injunction and seeking
delivery of the documents; in due course, the documents were delivered,

but someone had tampered with the documents to ensure that the identity.

of the source remained protected. The Vice Chancellor ordered Granada
Television to serve, on the British Steel Corporation, an aﬂidavit setting
out the name of the person responsible for supplying the information. Granada
Television appealed. It was held that there was clear authority that the
Court should balance the private right to conﬁdentiality against the public
good of press investigation of possible wrong--doing. In a proper case, the
courti would protect the press from any compulsion to name a source, but
such immunity depended upon the publisher acting with a due sense of
responsibility. In the present case, Granada Television had not acted with
such responsibility and had abused their power. They had behaved so
badly as to forefeit their right to immunity.'

4.14. By way of a broad summary of the position in England at
common law,2 it may be stated that while a journalist does not possess a
legal right, as such, to refuse to disclose his source of information, this does
not mean that the English courts are entirely unsympathetic to a request
by a journalist for being permitted not to disclose the source. In the ﬁrsvt
place, in an action for libel, at the pre--trial stage, disclosure of the source
is not generally ordered in proceedings for discovery? In the second place,
in regard to the summoning of a journalist to give oral evidence and compel-
ling him to answer questions that would involve the disclosure of his source
of information, English judges usually do not insist on compelling him to
do so, unless they regard the answer to the particular question as material.
Thirdly, during recent times, judicial suggestions for reform of the law
has also started pouring in, one example being the suggestion made by
Lord Iustice Soarman (as he then was) in a case reported in 1975.4

III. English statutory provision of 1981

4.15. The position at common law has been summarised above. It
should now be mentioned that in England, by a statutory provision enacted

in 1981., sources of information contained in publications are protected to
a limited extent. Section 10 of the Contempt of Courts Act, I98i,5 reads
as under :--

"Io. No court may require a person to disclose, nor is any person
guilty of contempt of court for refusing to disclose, the source of infor-
mation contained in a publication for which he is responsible, unless
it be established to the satisfaction of the court that disclosure is
necessary in the interests of justice or national security or for the preven-
tion of disorder or crime."

Section 2(1) of the same Act deﬁnes the expression "publication", as.

under :-------

"publication" includes any speech, writing, broadcast
Which is addressed to the

5(1) .... ..

or other communication in whatever form,
public at large or any section of the public."

British Steel Corp. v. Granada Television (1980), 3 W.L.R. 774 (HTJ

For statutory modiﬁcation of the Common Law rule, see paragraph 4.15, infra.
O. 82, R. 6, R.S.C. (Eng.).

Senior V. Holdswortli, (1975), 2 All E.R. 1009.

Section 10. read with section 2(1). Contempt of Court Act, |98l. (C. 49),

§Ji¢-g.».-----

13
4 'By section '19 of the same Act, "court" is deﬁned as including any
person or body exercising the judicial power of the State.

It may be of interest to note that in the Contempt of Courts Bill,
section IO (quoted above) was not contained in the original Bill. Nor had
any such provision been recommended by the Phillimore Committee which
had reported (1974) on the law of Contempt of Court. The section came
into the Bill at the Commons Committee stage.'

IV. Obligation of disclosure--extent of

4.16. The above discussion shows that there is, in England now a
limited legal obligation to disclose the source, if the competent authority
considers such disclosure necessary. This limited obligation is governed by
section IO of the Contempt of Courts Act, 1981. At the same time, it
should be remembered that there is no general duty of disclosure on all
occasions. Except when required by a competent authority, a journalist can-
not he required to disclose the source' of his information. Thus, in 1963,
the Finance Committee of the Brierely Hill Urban District Committee
demanded to know the names of a newspaper's reporter and his informant
responsible for a story which gave advance information about a proposed
increase in the local rate. The editor of the paper said that he had "not
the slightest intention" of disclosing them?

In 1938, the dominant Labour group on the Glassgow Corporation
were minded to take some action (unspecified) against a city journalist, who
had published details contained in a conﬁdential document about proposed
increase in council house rents. The group also desired to take action

No general
duty in
England.

against his informant. They were, however, powerless to do anything about '

the former, and unable to ascertain the latter.'

V. Disclosure in Libel Actions

4.17. Even before the passing of the Contempt of Courts Act, 1981,'
it was settled that. in England, in interlocutory proceedings (i.e. proceedings
preparatory to the hearing of a civil action), an imterrogatory could not
generally be served requiring a newspaper, when sued for libel, to reveal
the source of information. Thus, it has been held' that in an action for
libel. a newspaper could not be required to reveal its source where fair
comment was pleaded as a defence. Again, the Court of Appeal would not
allow a sports writer to be required to reveal his source, where "justiﬁcation"
was pleaded in an action for damage for l1bCl.5--5

4.18. These judicial decisions on interrogatories in libel actions are
now embodied in the Rules of the Supreme Court, the revelant rule reading
as under' :

"In an action for libel or slander where the defendant pleads
that the words or matters complained of are fair comment on a matter

1 Standing Committee A-7 sittings commencing 21 April 1981: Vol, 6, (Sec. Annota--
tion in Current Statutes). _ -
2 Anthony Richards, Law for Journalists (1977), page 83.
3. Paragraph 4.13, Supra-
4_ Lvon v. Daily Telegraph, (1943) 1 K.B. 476; (1943) 2 All ER. 316 (C.A.).
5 Lawson v. Oihama Press Ltd., (1949) 1 K.B. 129; (1943) 2 All ER. 316, 717 (C.A.).
6 For extensive references, see Catley, Libel and Slander (1981), para. 1216;
7 S. 82 R. 6, R.S.C. (Eng.).
3---443 LAD/ND/83

Libel
actions.

Supren .
Court

rule as

to dis- _
covery In
llb€l actions.

lnfringemmt
of copy right.

The Pr-'ss

Council (U.K.).

Physician and
p .1] :I1[

Protection
aft, inst
d- acl. r3ur='.'.

of public interest or were published on a privileged occasion, no inter-

rogatories as to the defendant's sources of information or grounds of
belief shail be allowed." '

4.19. It may also be mentioned that in 1976, a judge refused to order
a newspaper to reveal its source of information to a former Government
Minister. The Minister was suing the newspaper publishers for alleged
infringement of copyright and misuse of conﬁdential information.'

VI. The Press Council of U.K.--Comments on disclosure of sources

4.20. Occasionally, the Press Council of U.K. has had to make
comments relating to the disclosure of sources by journalists. In 1959, the
Nottingham Branch of the National Union of Iournalists complained to the
Press Council about visits to the Nottinaham Evening Post by C.I.D.
officers who demanded to know the identities of the writers of certain nom
de ¢>.7z4.cc letters to the editor. The Press Council adjudicated as under :--

"The police must be at liberty to make inquiries in newspapers
offices as elsewhere, but it was improper for a request to be made to
a journalist to become a source of supply for information, on security
matters "

VII. Medical records

4.21. It would be of interest to refer to some cases concerning medi-
cal records which have been decided in England. In general', the common
law does not recognise any privilege of non--disclosure in regard to infor-
mation imparted by a patient to his physician in conﬁdence. Although
sits;-zestions for reform of the law on the subiect have occasionally been
made, no' such legislation has so far been passed in England. Some com-
monwealth jurisdictions are, however, understood to have enacted laws on
the subject'.

4.22. The common law approach is represented by the dictum of
Iessel M. R., who pointed out that protection (in the law of evidence) is
contined to communications which a man must necessarily make in order
to obtain legal advice, when needed for the protection of his life fortune.
There are, he observed, many communications which, though absolutely
necessary because, without them. the ordinary business of life cannot be
carried on, still are not prixrilegerl. 5"The protection is of very limited
character and in this country is restricted to the obtaining of the assistance
of lawyers as regards the conduct of the litigation or the right to property".

VIII. Contemptuous matter

4.23. There is one matter in which judicial practice in England dis-
allows disclosure. Vv'here a contemptuous article has been published, the
court will not compel the editor to disclose the source or to name the
author."

I. Anthony Richards. Law for Journalists (1977). page 83.

2. Hunter v Mann, 2 All ER. 414. 2, Cross Evidence (1979), pages 296-297.

3. D v N.S. P.C.C. (1978) AC. 171. 245; (1976) 2 All BR. 993 (Lord Edmund:

Davies).

4. Para 5.4. infra.

5. \VheeIer v. La Mercha."-t. (1881) 17 Ch. D 675 (Jessel M.R.).

6. Re Bahama Islands Reference, (1893) AC. 138-140 (PC)-

115
ix. Theft of documents

4.24. There is an interesting case of "theft" of document by a journalist Ellglisll

in England. David May, a Jouiiiaiist, ootaiiieu piiotugiapiis ot a 'supaiiisn ""'~5';'" U'?
L -V 1 ti)
banker atter the Danliers Kldllap in 1'2l1'1S in iy/4. .ll1c: photographs, to ,1':,cun,¢m5.

prove their authenticity were accompanied by the bankers Bans residence

permit. May refused to tell the poiioe the sourse or the photographs and the
permit. He was charged with handling "stoieh property" (the permit),
but was acquitted. 'lhe prosecution admitted that May' would not have
been charged it he had (1lSClOSCd his source. They maintained that the
journalists' code of conduct was overridden, because the banker's life was at
stake. The judge said that the journalists' code or silence was "not inﬂexible",
and "there may be circumstances in which .......... .. it is more honourable
to preserve lite than a conﬁdence."

In 1973, the Sunday Times and the Railway Gazette published stories
about projectedcuts in rail services, based on a conﬁdential document
which (the oﬂicials alleged) had been "removed" from Ministry oﬂices.
Police raided the oﬂices oi the Railway Gazette, saying that they were investi-
gating an alleged thett of the documents. However, they failed to find the
source through which it had been leaked. The Attorney--General later telt
that there was "iiisutiicient information" on which to charge any one with
"stealing" a photocopy of the document.'

1. R. V. May. (1975) as summarised by Anthony Richards. Law for Journalists (1977),
pages 84-85.
2. Anthony Richards, Law for Journalists (1977). page 85.

Australia.

Ruling in
New South
Wales.

Ruling in
New South
Wales and
Australian
Capital
Territory.

Position in
Australia as
to clergyman

and physician.

CHAPTER 5
C()MMONWEALT.H C()UNT1{IES

5.1. T he position in a few Commonwealth countries on the subject under
consideration may now be mentioned in brief. Australia follows the general
rule of_the common law that, in the absence of a statutory provision,
jgiirnalists have no right to 'refuse to disclose, in' proceedings before the

ourt, thp source_ of their information.' The following observations of
Starke I., made in regard to proceedings before a Royal Commission of
Inquiry that had been setup to determine the truth of allegations made
plublicly by the journalist himself, are applicable to proceedings before courts
a so z---

n "Next it was submitted that the source of the appellant's informa--
tion upon which the newspaper articles were based was privileged and
that he could not be compelled to disclose it. No mc/2 przz/ztcgc cxzrt:
according to law. Apart from statutory provisions, the l'ress, in courts
of law, has no greater and no less privilege than every subject of the

king."

in the above case, the articles published by the editor had alleged that
certain members of the Victorian Parliament (not named) had accepted
bribes in connection with two Bills introduced into Parliament. The Royal
Commission put him a qeustion as to the source of his information," which
he declined to answer. He was convicted of an oﬂencc under the lividence
Act 1928 and ﬁned 15. He appealed to the High Court of Australia,
which held that he had been rightrully convicted.

5.2. The view taken by the High Court of Australia in the above
case has been followed in a Full Court ruling in New South Wales.5 'l'l'ie
Full Court held that a discretion to decline to order that a journalist should
answer a question as to his source existed only to the extent that the question
was irrelevant or improper.'

5.3. In a later case decided in 1976, the Supreme Court of the Australian
Capital Territory took the same view? This was an action for defamation
alleged to have been committed by the defendant. corporation in pu.blisiLiiiig
an article in its newspaper. The jurnalist who wrote the articles was asked
during cross examination the names of the informants who had supplied the
information alleged to be defamatory. The journalist refused to answer the
question, saying that he was bound by his honour not to do so. The judge
held that the journalist enjoyed no relevant privilege, following the decision
of the N.S.W. Full Court which we have mentioned earlier."

5.4. The above is the position in Australia as to journalists in the
absence of a statutory modification. Two Australian States (Victoria and
Tasmania) have thought fit to enact legislation creating two additional

1. Mr. Justice David Hunt, "Why No First Amendment? The Role of the Press in
relation to Justice" (1980) 54 A.L.J. 456-462.

2. McGuim1es V. Attorney General of Victoria, (1946) 63 C.L.R. 73, 91 (High Court of
Australia).

3. Pt. Buc/tang, (1964-1965) N.S.W.R. 1379, 1381.

4. Facts taken from Law Reform Committee of West Australia, Working Paper
(Privilege for Journalists), pages 3-5, para 2.4 to 2.9 (10 June, 1977).

5. Hewitt V. West Australian Newspaper Lad. (17 Nov. 1976) (Supreme Court of A.C/:.T.).
Facts taken from Law Reform Committee of West Australia Woiicing, Paper, Privilege

for Journalists, pages 5-6, para 2.10 (10 June, 1977).

5:. Re. Duchman, (1964-65) N.S.W.R. 1379 (See para 52, supra).

16 17

privileges, besides those generally recognised in common law jurisdictions. in these states, a clergyman cannot divulge, without the consent of the patient, the contents of any coiifessioii made to him in his professional capacity.' Also, a physician or surgeon cannot, in these States, divulge in civil proceedings (unless tli'*v;<;mity or tesi:e.iii«entary capacity of the patient is in dispute), any iiifoi"ii1:'itm;i: which l."«_€ acquired in attending the patient and which was necessary to enable him. to prescribe or act for liini.'5"3 5.5. A discussion of the Canae:lian law on the subject may start by stating the general rule pre\';:?iing in C'1)fifil']'lOI'.\VC£iltll jurisdictions' to the effect that the protection gE--:<:r1 by law for conﬁdential communications is of a very limited character: and is wstrictcd to the obtaining of the assistance of lawyers as regards tliz: ce.nt?=.<.ct of iitigation or the rights to property. On this basis, it can be stated that jziurrialists in Canada have no privilege against the disclosure of information imparted to them in conﬁdence during the exercise of their profession. There is one ruling of the British Columbia Court of Appeal to the same effect, regarding journali.sts.5 5.6 However, it should, at the same time, be mentioned that in one case (not relating to }ourn_alis:ts) decided by the Supreme Court of Canada, there are obitcr dicta which suggest that even outside the relationship of lawyer and client, the doctrine of privilege to protect conﬁdential relation- ship may receive some encouragement from the judiciary. In that case, a University Professor in Alberta claimed privilege for certain assertions about a college, these were assertions which he had set out in a conﬁdential document sent to the Department Chairman as a part of the proceedings of the university for the consideration of tenure. After quoting the well- known "four fundamental conditions" given by Wigmore for the recognition of evidentiar privilege, the Supreme Court of Canada held that assuming the applicability of evidentiary privilege in the litigation, "the confidential document should have been ruled inadmissible .......... .. under the doctrine of privilege as so able considered in Wigmore .............. .." However, the court held that the particular facts at bar did not invoke the law of evidence."

5:7. It should be mentioned that the Court of Appeal for Ontario has concluded "that there is no recognised discretion to exclude relevant end admissible evidence based on conﬁdentiality alone."7 5.8. It is proper to mention, however, that in the narrow.context_ of pre-trial discovery proceedings, where tl]c'aC'[1OI1 is for defamation against newspaper proprietors or reporters and arises 'from published articles, the uestion may arise how far the English practice," of refusing to compel defendants in such cases to disclose the names of informants in response to the demand of the plaintiﬁ', is to be followed in Canada. Opinion in this

1. Evidence Act, 1958, section 28(1) (Vi'ct.); Evidence Act, 1_9l0, section 96(1) (Tas.)'._ The Tasmanian provision does not apply to a communication made for a criminal purpose. ' _

2. Evidence Act, 1958, section 28(2) and (3) (Vic.); Evidence Act, l91(_), section 96(2) and (3) (l'as.). The Tasmanian provision does not apply to a communication made for a criminal purpose.

3. For the English practice, see paragraph 4.20, supra.

4. Wheeler V. Merchant, (1831) 17 Ch.D. 675. 631, 532 (CA.)» .

5. McConephy V. Times Publishers Ltd, (1964) 49 D.L.R. (Second) 249 (British Coluﬁ'i~ bia Court of Appeal), cited by Stanley Schiff, Evidence in the Litigation Process (1973), Vol. 2, page 1011.

6, Slavuiyth v. Baker, (1976) 1 SCR. 254, 260, 261 (Supreme Court of Canada),

7. Reference to Legislativg Privilege, (1978) 19 Ontario reports (2nd) 529, S41, 39 Canadian Criminal Cases (2nd) 226,, 228, cited by Stanley Sehilf, Evidence in the Litigation Pro= cess (1978), Vol. 2, page 1011.

8. For the English practice, soc Order 82, Rule 6, R.S.C. (Eng) and Chapter 4. supra.

Position in Canada.

Obiier dicta in Supreme Court C456 (Canada).

O_ntario view.

Actions for defamation in Canada.

Proposed Evidence Code ( Canada).

is respect seems to be differing in Canada. Ontario judges have consistently followed the English practice since the turn of this century.' However, the Court of Appeal for British Columbia has emphatically refused to follow the English practice." It would therefore appear that the position in this regard in Canada should be considered' as fluid.' 5.9.--Finally, it may be added that the proposed Evidence Code for Canada would make drastic changes in the existing doctrine. Section 411 of that Code reads as under5 :--

"4r. A person who has consulted a person exercising a profession for the purpose of obtaining professional services, or who has been rendered such services by a professional person, has a privilege against disclosure of any confidential communication reasonably made in the course of the relationship if, in the circumstances, the public interest in the privacy of the relationship outweighs the public interest in the administration of justice."

1. Reid v. Telegram Publishing C0,, (1961) Ontario Reports 418 (Ontario High Court of Justice), referred to by Stanley Schilf, Evidence in the Litigation Process (1978), Vol. 2, page 1012.

2. McConephy v. Times Publishers Ltd. (1964) 49 D.L.R. (2nd) 349 (British Columbia).

3. McLauchlin, "Confidential Communication and the Law of Privilege" (11977) 11 Univ. of British Columbia Law Rev. 266. .

Stanley Schiﬁ, Evidence in the Litigation Process (1978), Vol. 3 pages 1011-1012.

Section 41, Evidence Code for Canada (proposed), quoted by Stanley Schiff, Evidence in the Litigation Process (1978), Vol. 2, page 1011-1012.

EJI-h CHAPTER 6 POSITION IN THE UNITED STATES I. First Amendment h in Developments in the U.S.A. with reference to journalistic privilege THVC Ween very] extensive. The subject even assumed constitutional impor- ance in 1972. In this Chapter, only a few salient aspects of these deve- lopments will be touched.

Qa. Although it was generally 'agreed that the common law afforded no privilege to journalists, the question arose whether the Constitution of the United States did so. The First Amendment provides that "Congress shall make no law ....... .. a bridging the freedom ....... .. of the press".

' In 1972, the United States Supreme Court reviewed three cases in which grand juries, investigating the activities and ideas of certain political and social groups,' had attempted to compel journalists to disclose conﬁdential information and the identities of their informants. The cases, which were heard together, were Brcmzlaurg V. Haves, (ii) In R." Pappczs and

(iii) U.S. v. Caldwell (the cases being collectively known as the Branzburg case)? The Supreme Court held, by a majority, that the First Amendment aﬂorded no protection to journalists in these circumstances."

11. State Laws (Shield laws in U.S.A.)' 6.3. However, the fact that the First Amendment does not confer an immunity, as such, on journalists from the disclosure of the source of a confidential information does not conclude the matter since, by legislation a number of States in the U.S.A., have provided that conﬁdential relation- ships between a journalist and his source should be protected. This has been achieved bv the passage of "shield laws". These laws provide the newsman with immunity from forced disclosure of the identity of his source. Details of the legislation vary from jurisdiction to jurisdiction.5 The First State in the U.S.A. to enact such a law was Maryland (1896), followed by New jersey (1gg8), Alabama and California (I<)35)5 and other States. In 1970, such a law was passed by New York7, while Pennsylvania had already enacted it in 1937.' The most well--known is the provision in California, first enacted in 1935 and appearing as section 1070 of the California Evidence Code?

As of 1980, 26 States in U.S.A. had shield laws, the latest to pass such a law being Tennesse (I973).'°

1. Paragraph 6.2, infra.

Branzburg v. Haves, J-FSTI 33 L. Ed. 2d. 628.

Generally. see Alfred Hill, "Testimonial Privilege and Fair Trial"

L. Rev. 1170-1176..

As to libel actions, see para 6.13, infra.

Para 6.4. infra.

Section 1970, California Evidence Code.

Section 79-11. New York Civil Rights Law.

Pennsylvania Statutes, Title 28, Section 330.

Section 1070. California Evidence Code.

Sobel, Media Controversies (Facts on File 1981) vanes 153-173; O'Brien, Public's Right to know (1980) App. C, pages 183-185 (State Shield Laws).

E"

(Oct. 1980) 80 Col.

1-"

'?°.°°.".°":'|."

Introduct- ry The First Amendment and the judgment in LBranzp ..r Position under _State Laws in USA.

State Laws inU.S.A. Classes of publications 17' tected _i' U.S.A. Classes of pm-sons protected in USA.

Matter protect: d ID U.S.A. Requirement of c)nﬁ1?ntial.ity in U.S.A. ( uality or st' (us of z': I privilege ii U.S.A. 20 The subject has been dealt 'with at length in two sturlies.'-3 6.4. The statutes passed by the State legis7.:mi=':.%'»; in the U.S.A. vary in their content from State to State. These variaiirms are regarding the classes of publications covered hv the .<;tatu~tes, (b) the classes of persons on whom the privilege is conferred by the statutes, (e) the matter protected by th'? 51?1tUt<'«9, the presence or absence of the re<uiircment of conﬁdentiality in the statutes and (e) the quality or status of the Prl\'llt'g'(f accorded by the statutes. V as 6.5. First, as regard the classes of publications covered by the "Shield laws' in force in various States in the U.SA. there are three broad categories :~ "

(i)

(ii)

(iii) Statutes conferring the pr'~I'<rcti0n on newspapL'rs. and radio and television stations (for ex;m'~,nle. Alribarna) ;

Statutes which cover clso zr1a_:rJ*7iiir_~«;, ncvvs awncics, press associa- tions and wire services (for .'?.".Z1.I?1l)iI.', New York) ;

Statutes which cover any "medium of conununication to the public" (for example, Oregon and l\lcw Mexico).

6.6. Secondly, as reqards the classes of D"rs(mS protected, there are 'hree broad categories in the U.S.A.yunder the State "shield laws" :

(i)

(ii)

(iii) Statutes covering only professional reporters and ncws~casters (e.g. New York) ;

Statutes extending the privilege to editors /writers and publishers also (for example, Arkansas) ; and Statutes szranting the privileqe to anyone connected with the rele- vant medium in a capacity involving? the szathering of or processing of informations (e.g. Minnesota and Nebraska).

Thirdly, the matter protected by such Shield Laws may be---- only the sources of information obtained by 21 iournalist profes-

sionally (err. Ohio and Kentucliv) : or all unpublished information (eg. Nebraska and Oregon), 6.7.

(i)

(ii) 6.8. Fourthly, as rewards the ren,u.irenicnt of confidentiality, under the treneral pattern or the Shield laws in US..A.., then: is no express requirement that the source should. lnvc given the information on the understandim: that his identity would remain secret (for example, the statutes of Alabama, Minnesota' and New York).

6.9. Finallv. as to the quality or status of the privilesres : some statutes in U_s_A_ provide gm glwmltite nrivile-«r<:. 9.0.. those of Alabama and New York. Others provide only 3 qu."=.li-ﬂed privilcnjc. An example of this latter categorv is that of Minnesota, whose statute provides that the 'privilege does not apply "in anv defamation action wh/'ire the person seeleing disclosure can démongtmtc that the iden-'itv of the source will lead to relevant evidence on the issue of actual malice",3 or when ll'.'.: information is relevant to a ggriggg Offfgncc and "theft: is a crimoelli-w<_r tmd overridin_.<r interest requiring the disclosure of the ii1f,orin.:-tum where the disclrisurr: is necessary to prevent iniustice," provided that the inforrmtion cannot be obtained by other means. The statute of New Mexico requires disclosure when "it is essential to prevent injustice".

(W estpott)

1. Mauries Van Gerpen. ?riVilc2etl C'oniniuvtications and the Press (1979), Connecticut Green W000 PI°€S3- 2, Vincent Blasi, "The Newsmen's 'Privilege. Rev. 229.

3. See further, para 6.13, infra (libel actions)» An l:i:X',t_'>3?'iC£ll Study" (1971) 'Mich._'Law QI 6.10. It would be of interest to ascertain whether the absence or presence of protection has affected the How of news. It appears that there is no substantial difference as to the flow of news in these States which have shield'. laws and those which do not.' This may be because a number of these laws give only a qualiﬁed privilege."

III. Some decided cases in U.S.A. 6.11. Mention 'may be usefully made of a few cases decided in the United States on the question of newsmen's privilege. Iudge Irving Kufman, writing for a unanimous three--judge panel of the Second Circuit, held in an anti--blockbusting suit that a writer for the Saturday Evening Post did not have to reveal his source, even though that source had direct knowledge of facts central to the issues of the anti-blockbusting suit before the court.' Neither the writer nor the publication was a party to the litigation."

The Ninth Circuit has held that two staff members of a Black Panther party newspaper did not have to disclose the identities of persons associated with the publication to a federal grand--jury which was investigating threats of presidential assassination and other possible criminal conduct by members of the Black Panther Party.' 6.12. In another caso.,5 decided on First Amendment grounds, sub- pocnas directed to members of the press, including Washington Post reporter Bob Woodward and Carl Bernatein, were quashed. The Court concluded that the plaintiff had not made the requisite "positive showing of the materia- lity of the documents and other materials sought by the sub-poenas". Similarly, in yet another case,7 the court refused to order a medical news- letter to disclose its conﬁdential sources, even though those sources possessed information relevant to the plaintiE's allegations of adverse drug effects. The court reasoned that "the information sought here is relevant, but not essential to the resolution of -the judicial controversy."

6.13. It appears that on October 31, 1977, the Supreme Court of United States declined to review a decision pronounced by the Supreme- Court of Idaho that a reporter, when called as a witness in a civil suit, could not withhold the identity of a conﬁdental source.' 6.14. On the question whether there was a constitutional link between the right to publish news and the right to gather news, there was a compre- hensive discussion in an issue of the Bulletin of the American Society? The issue reports a unanimous verdict that "while our right to fuhlish stands secure. our right to gather does not".

1. Note "Reporter's Priv,ilege--Guardian of the People's Right to Know" (1976) 11 New England Law Review 405.

2. Para 6, 9, supra. .. .-

3. Rakor v. F. & F. Investment, 170 F. 2d 778 (2d Cir. 1972) Cert. denied. (1973) 411 U.S. 996.

4. Howard Simons and Joseph A. California Jr. Ed, The Media and the Law (1976), _ pages 15-16. _ A

5. Bursay v. U. B. cited by Howard Simins and Joseph A. California, Jr. (Ed.), The Media and Law (1976), pages 15-16.

6. Democratic Nafinnrl Committee V. ML'. Card, 356, F. Supp. 1394, 139$ (D.D.C. 1973) cited by Howard S-'moms and Joseph A. California, Jr. (Ed), The Media and the Law (I976), pages 15-16. _ .. , ' _ '

7. See Howard Si-'none and ]0°epl1_.\ Falifani, Jt. (Ed). The Media and the Law (1976), pages 15-16.

S. 'I'irs'bi:ne Pubh'r.hir.r,v Cr). v. Cnlrlernk, (31 October. l9'.7) cited by Sobel (rd), Media Controversy (Facts on File, 1931), page 10.

9. See December-lannary_ 1978 issue of the Bulletin of' the American Society, Gist of the discussirm; mrnmarised in Sol-tel (Ed), Media Controversy (Facts on File_ l98l), page 12. - > 4-----443 LAD/ND/83 Effect on ﬂow of news.

Case law in U.S.A. Want of materiality (First Amendment) applied.

Case of 1977.

Discussion in Bulletin of American Society.

Libel actions (First Amend-

mc t in applied.) Recent d :velopments----

Cal . fornia .

?2 IV. Libel Actions 6.15. In libel suits, courts in U.S.A. have also refused (on First Amend- ment grounds) to order the disclosure of a defendant's confidential news sources, except in the unusual circumstances in which (a) the plaintiff has demonstrated a substantial likelihood that disclosure will lead to persuasive evidences on the issue of liability, and (b) alternative sources have been exhausted.' The Eighth Circuit,' for example, has held that a Life Magazine reporter did not have to reveal the conﬁdential source of allegedly libellous statements about the organized crime connections of a Mayor. In the above case, the Mayor was suing Life Magazine for libel. The Supreme Court declined to review this case and the decision of the Eighth Circuit was allowed to stand 3"

6.16. Only one federal appellate court in U.S.A. has ordered a libel defendant to disclose the identity of a conﬁdential news source. That case arose out of a lack Anderson column reporting on the United Mine VVorkcrs and its general counsel, Edward Carey.' The court emphasized that it was not establishing a general rule applicable to all libel defendants, but rather was limiting its decision to order disclosure to the extraordinary circum- stances before it. The court ordered disclosure because the statement alleged to be libellous was based entirely on conﬁdential sources and the plaintiff had no way of proving either falsity or recklessness without a knowledge of the identity of those sources. The court stressed its agreement with the rule applied by the Eighth Circuit in the Cervantes casc,6 that a libel defendant may not be constitutionally required to disclose the identity of confidential news sources, except when the information obtained from the sources is the sole basis for the allegedly libellous statements. The Supreme Court never had to consider this case, because the source released Anderson side Brit Hume from his pledge of conﬁdentiality.

V. Recent Developments in U.S.A. 6.17. There have been some noteworthy recent developments in the United States relevant to the topic under consideration. A law permitting reporters to withhold their sources, adopted by California voters in Iggo, was declared unconstitutional (Ianuary I8, 1932) by a Superior Court ludge. on the ground that it created an unsupportable conflict with the constitutional right to a fair trial. The issue concerned "out takes", or unused ﬁlms, from an interview conducted for the CBS News Program "6o Minutes" by Mike V»'allace. The subject of the interview was Barry Braesckc, now 25 years old, who had been convicted of first-degree murder. Iudge Stanley Colde held that the "Shield Law" was a First Amendment privilege that must give way to the Sixth Amendment guarantee of fair trial for the accused."

I. See also para 6.9, supra.

2. Corvantes v. Time, Inc. 464 F. 2nd 986 (8th Circuit) 1972 cert. denied, (1973), 409. U.S. H25.

3. Howard Simons and Joseph A. Califani, Jr. (Ed.). The Media and the Law (1976), page 16.

4. For other developments: see, "Source Protection in Libel Suits" after Herbert v.

7,«Jr1£fr;_ I'\-'larch. l-')Sl). Bl Colombia Law Rev.. pastes 338-365.

5. ('armv V. Hume. 402 F. 2nd 631 (D.C. Cir. W74), cert, Dismissed. 417 US. 938 (l"~"-41.

6. F'-"-vrm'N V. Timc, Inc. 464 F_ ed. 956 (8th Cir. l972). Cert. denied. (1973) 40') US. I325 (para 615, supra).

7. Report, "Califo~rnia"s Closure Law upheld Shield Law over-ruled" (23 January Editor and Publisher, page 16.

8. lnfnmiation as to later developments by way of appeal was not available, 1982) 4 23 6.18. Another recent development worth noting relates to the well §""'_"' C0~*9- known Farber case, which arose in New Jersey in 197.8. The case related Diﬁjﬁpmen, to the murder trial of "Dr. X". In the trial, a surgeon had been accused (NUW J~'r'~<'>') of murdering ﬁve hospital patients by injecting them with curare. A journalist M.A. F arber had to undergo criminal penalties after the newspaper New York Times and its reporter 'refused to 'turn over 'the reporter's notes during the trial. Farber had to spend 40 days in jail and the New York Times paid a total of 2,255,000 dollars in fines for defying a court order that Farber should provide the defence with all his notes for his story and reveal his conﬁdential sources.

6.19. On 19th Ianuary, 1982, the Governor of New Iersey Brendan Pardon by Byrne, on his last day in oﬂice, returned the criminal penalties and issued gzicrnor. pardon. The Governor noted the changes made in 1980 in the Shield Law of New Jersey, which required a hearing before the reporter is compel- led to reveal his sources. "Father and the New York Times were attempting to uphold a principle they believed in. They should not be burdened by a record of criminal contempt any longer". This is what Governor Byrne stated.' VI. Model Contract in U.S.A. 6.20. It is of interest to note one peculiar feature regarding the United gggfflct States. It appears that the model contract evolved by -the Newspaper Guild' in U_'s.,s',_ in U.S.A. contains a clause relating to "privilege against disclosure and authentication". This privilege seems to have been introduced in 1970, -and represents a definite policy as to the protection by the employer of reporters and their sources from source disclosure. It appears that the primary object of this clause is to give the employee full ﬁnancial and legal support from the employer. The provisions of the model contract clause have been analysed as comprising the following propositions.' :-----

P--I. An employee may refuse, without penalty_ or prejudice, to give up custody of or disclose any knowledge, information, notes, records, documents, films, photographs, or tapes or the source thereof, which relates to news commentary, advertising, or the establishment and maintenance of his sources in connection with his employment.

P-2. An employee may also refuse, without. penalty or prejudice, to authenticate any material.

P-3. The employer shall not give up custody of -or disclose any of the above without consent of the 'employee.

P-4. The employer shall notify the employee concerned, and the Guild, of any demand on the employer for such surrender or disclosure or authentication. ' P-5. If the employee is proceeded against under law on account of hisrefusal to surrender or disclose or authenticate, the employed shall move to join as a party to such proceedings;

P--6. (the Employer) shall meet all expenses incurred by the employee, including fees and expenses of legal counsel retained by the employee ;

(23 January, 1932), Editor & Publisher. page 6- ~« __o.-_1 Cour t"Dec ber1,1975,quotedinGailL. ?§?wi:°73E':aper5ri§n"§i;'l' beUl§ar::iine:ll?" (gurhiner 198%': Journalism Quarterly 205, 206,

207. Nt-

Directive by Justice Department.

Opinion poll of 1979.

.24 P-7. and (the Employer) shall indemnify such employeeagainst any monetary loss, including but not limitedto fines, damages or loss of P''')'' . .

P-8. In no case shall an employee surfer loss of wages, employee status or benefits under this contract as a result of his refusal to surrender or disclose or authenticate. ii ' VII. Directive of Iustice Department 6.21. It should also be mentioned that in I 971 the lustice Department,' under Attorney General john ivlitchell, issued guidelines which, it followed, sharply restrict the power of U.S. attorneys to subpoena reporters, whether or not conﬁdential sources are involved. Under tnese guidelines, no U.S. attorney may subpoena a reporter unless he has exhausted all other possible sources of the testimony he seeks. Even in such circumstances, the U.S. attorney must first obtain the explicit permission of the Attorney General before he subpoenas the reporter. Experience with these guidelines has been mixed. It is stated that as recently as late I 974, some government attorneys were not even aware of the guidelines. Nevertheless, these guidelines do stand as a formal Justice Department statement of principle and policy.' VIII. Opinion Survey 6.22. In I979, a survey was conducted amongst a national cross-section of 12,000 adults in the United States, who were interviewed by telephone from April 0, to April 9 that year under the ABC News--l-larris Survey} The majority of the respondents considered it more important to protect the privacy of a reporters unpublished notes and sources, rather than to allow the courts to force disclosure of such inlorination if it is felt necessary to ensure a fair trial. Two cases, substantially based on reported decisions, were put to the respondents. It will be of interest to quote the ﬁrst case that was put before the respondents : "A newspaper reporter who is testi- fying at a trial refuses to name a person who gave him information. The reporter says he promised that person (that) he would never reveal his name, and if he broke that promise, other sources might not give important information to other reporters in the future, and then the American people would be cheated of their right to know that information. In addition, the reporter says, his constitutional right to freedom of the press is being violated. The attorney who asked for the name says the trial will not be fair without the testimony of the man who gave information . to the reporter, because his story (is) important and no one else has all the information the reporter's source has. Now you are the judge. Would you order the reporter to name his source or not P"

By a decisive 70-21%, most Americans would not order the reporter to name his source. That was the opinion as ascertained by the survey mentioned above.

.1. 2.8 c.i=it. 50.10 (1974). _ _

2.. Howard and Joseph A. Califani, Jr. (Ed). The Media and 'he Law (1976) page 1.17.

3. See summary of the page 13.

survey' of opinion in (2151: April, 1979) Editor & Reporter, _ CHAPTER 7 THE ISSUES FOR CONSIDERATION

7.1. Assuming that the law on the subject under consideration is to be changed by suitable legislation, there arise for examination a number of questions of detail and difficulty. These questions concern the quality and range of the protection to be conferred, as regards (a) the classes of persons to be protected, under the head of journalistic privilege, (b) the classes of publications to be so protected, (c) the classes of matter to which the protection should extend, (d) the types of proceedings to be covered by the proposed protection, and (e) whether the protection should be in the shape of a privilege of a class of persons, or whether it should leave some discretion to the Court. _The issues for consideration were set out in the Working Paper that had been circulated by the Commission on the subject.' The first question that arises is as regards the classes of persons to be entitled to the proposed protection. Should the proposed protection cover only professional journalists. or should it also extend to part-time contri- butors and other persons connected with the publication, when acting in the process of gathering or processing of information P _There are, thus, two alternatives. The first alternative would be the narrower of the two. The narrower course, which would conﬁne the protection to the professional journalist, has, no doubt, this argument in its favour, that the professional body of the journalists and the Press Council could help enforce the requisite standards. However, the framing of the protection in such narrow terms would have the effect of precluding persons who engage themselves in journalism occasionally and not as a matter of their regular vocation. As was observed by the Supreme Court of the United States, "the lonely pamphleteer who uses carbon paper or a mimeograph may as much have a right to protecion as a larger metropolitan publishers"? Further, it can be argued that if the protection is to be effective, it might have to cover the editor and other senior management personnel to whom the information is conveyed, and should also cover persons who accompany the newsmen, such as the cameraman.

7.2. Secondly, regarding the classes of publications that should be entitled to the proposed protection, the question that arises is whether the protection should :--

(i) cover only newspapers, or

(ii) cover newspapers as well as periodicals,

(iii) also cover radio and television stations, or

(iv) be framed in the broadest terms, so as to cover any medium of S communication to the public. ' Of the four alternatives put forth above, the first alternative is the narrowest one,'while the last alternative is the widest one.

7.3. Thirdly, regarding the matter to be protected, the question that arises is whether the protection :--

(i) should be limited to the source of information obtained by the journalist ; or ¥ Working Paper dated 19, February, 1983. _

2. Brenzburgjv. Hayes, (1972) 408 U.S. 665; S.Ct. 2646; 33 Law Ed. 2 d 625.

Matters of detail requiring consideration-

classes of persons to be protected.

Classes of publications to be consi-

dercd for protection.

Classes of matter to be protected.

Types of procrcditigs to be c)v>red.

Privilege .

or discretion.

Waiver of the privilege.

Opinions invited.

(ii) should cover all information obtained by the journalist in conﬁdence? v As regards the first alternative, it can be argued in support thereof that aim of any protection is to increase the How of information. Any proposed legislation need not concern itself with unpublished information. But an extended protection, as per the second alternative, may be sought to be justified on the ground that there is need to obtain background information which, though not intended itself for publication, is necessary for verifying the accuracy of the information to be published.

7.4. Fourthly, the types of proceedings in regard to which the privile.ge under discussion should be allowed, the question is--~Should the proposed privilege----

(i) be conﬁned to civil proceedings, or

(ii) extend to all proceedings in the course of which evidence is, or may be, legally taken on oath ; or

(iii) be excluded in regard to certain special types of proceedings, such as defamation actions against the publishers, criminal proceedings or proceedings before Commissions of Inquiry.

7.5. As regards the status of the privilege (if any) to be conferred, a number of alternatives fall to be considered------

(i) Should the privilege (if allowed) be absolute, or

(ii) Should the Court (or other body) before which privilege is claimed have a discretion to uphold or reject the request P

(iii) If such a discretion were to be given, what criteria should guide its exercise P Alternative would be simple, but may lack in elasticity. In regard to alternative (ii) it can be stated that where a discretion is given to allow or disallow the privilege on a case by case basis, the court can balance the need to protect the confidentiality of the source against the interests of justice and the effective achievement of the object of inquiry.

7.6. Finally, the question arises whether the privilege should be allowed to be waived. In detail, the queries that may arise in this regard are as follows z---

(a) Should the privilege be capable of being waived?

(b) If so, who should be competent to waive it---

(i) the journalist, or

(ii) the employer of the journalist, or

(iii) the informant?

7.7. The important issues relevant to the subject of this privilege were set out in the Working Paper which, after stating the alternatives, wound up the discussion as under :----

"The broad question is--+-in what circumstances, if any, should journalists be given the right to refuse to disclose in court and other 27 -

iudicial proceedings the source of their information P As elaborated above, so many points of detail arise out of this question. Brieﬂy, these are as under:----

I. Who should be included in the term "journalist" for the purpose of privilege?

2.

3.

6. What media should come within the scope of the privilege P2

(a) In order that the source be privileged, should the information be published, or should it be privileged even if the matter was never printed. broadcast or telecast ?

(b) Should the privilege relate only to the identity of the person who supplied the information. or should it extend to the information upon which published matter is based F3 Should the privilege apply to all court proceedings, civil or criminal, and if not, to which proceedings should it be conﬁned P4 Should the privilege,' if allowed, be absolute or should the courts (or other appropriate bodies) have a discretion to uphold or reject claims of privilege ?' If a privilege were to be enacted, who should be competent to waive it :5 ?'."':"'*'!'-"-' See paragraph 7.1, supra for the detailed queries on this point.

For detailed queries, see para 7.2, supra.

For detailed queries, see para 7.3, supra.

For detailed queries, see para 7.4, supra.

For detailed queries, see para 7.5, supra.

For detailed queries, see para 7.6, supra-

Comments on the Working Paper :

General description and views on first qucsti. .1.

CHAPTER 8 COMMENTS RECEIVED ON' THE WORKING PAPER

8.1. The Working Paper prepared on the subject under considera- tion was circulated by th.e Commission in February, 1983 to interested persons and bodies, including the Ministry of Information and Broadcasting, several organisations connected with the Press : The Press Council of India and its members, State Governments, High Courts and Bar Associations. A request was made to forward comments by the 15th April, 1983. All comments received upto 4th September. 1983 have been taken into account before ﬁnalising the Commission's views.

It may also be mentioned that very valuable views dealing with almost each question raised in the Vforking Paper have been expressed in an article by Shri S. Sahai of the Statesman who, incidentally, has also given in the article a gist of the important queries contained in the Working Paper. The Commission would like to express its appreciation of the interest shown by Shri Sahai in the matter' and also its gratitude to those who have sent comments on the Working Paper.

As regards the comments as such that have been received on the 'Working Paper, replies have been received from:

(a) Six High Courts'

(b) Registrar of one High Court who has. it appears communicated his personal views.' (C) One Member of Parliament' and ((1) One Bar Association.5 However, with reference to the replies received from High Courts (six in all) mentioned above. it should be made clear that only one High Court has expressed its views.' Three High Courts have sent negative replies, namely, that the High have no views to oﬁ'er7 or that the Iudges of the High Court have no desire to offer views."

Again, in two other High Courts, only six Iudges of each High Court have given their reaction and the reaction is that those six judges have "no remark to oFfer"9 or that they have no views to offer" (the rest of the Iudges of these two High Courts have not expressed views or their reaction).

Shri Sahai's article in the Statesman dated 7th April, 1983.

Law Commission File No. F. 2(2)/83 L.C. S. No. 11, 13, 14, 18 and 20.

C-omnission File No. ':7. 2='2l/93 LC. 9. N0. 13.

Inw Commission File: No. 2(2),/83-Ifi. & S. No. if). liMl'- Fdd-'iTd0 Fﬂlel-'0 4524 MP. G03).

5. Bar Association, Manipur, Imphal. Law Commission F. No. 2(2)/83 LO 9. No. 17.

6. Law (fummission File No. 2(2)/83-LC S. No. l4.

7 Law Commission File No. 2(2)/83-1 C 5- NW ll and 29- s-:~.~---

8. Law Commission File No. P42)/83'LC 3' N0- 13 and 29-

9. Law Commission File N-;\. F. 2&2)/S3 LC S. No. l3.

10. Law Commission File No. F. 2(2)/83-LC S. No. 16.

ZR 29 . Coming to the views expressed questionwise, the first question raised in the Working 'Paper was whether the proposed privilege in respect of disclosure by journalists should be confined to professional journalists only or whether it should cover others as.well._ In putting the query in this form, the Commission did not have in mind the categories of distinction between "working" and "non-working" journalists as such, or any demarca- tion between editorial and non--editorial staff. The Commission wished to elicit views as to whether there was need to keep distinct a person who has taken up journalism as a profession and, (on the other hand), the "lonely pamphleteer" who uses the carbon paper or a mimcograph.

According to the views expressed by Shri Sahai of the Statesman on this question,' "the short answer is that since the privilege is claimed on the ground of serving the public interest the people's right to know-it cannot be conﬁned to journalists alone ; but must extend to others as well".

The reply of one Registrar of a High Court (personal view),<is that the protection should be given not only to the professional journalists, but also to the part-time contributor and others connected with the publication when acting in the process of gathering or processing of information.' He would include, within the scope of the protection. the editor and other senior management personnel to whom the information is conveyed and the persons who accompany the newsman, such as the cameramen.

8.2. The second question put forth in the Working Paper concerns the categories of media to be covered. Should the proposed protection be conﬁned to daily newspapers. or should it be broad enough to cover periodicals or should it be still broader so as to include the media as a whole ?

According to the view expressed by Shri Sahai in his article, "once again, the provision must be couched in the 'broadcast possible terms, 'bringing in its sweep any medium of communication-----newspapers, periodicals and the electronic media, although the last being State-owned is hardly likely to publish anything embarrassing to anybody"

view expressed by one Registrar of a High Court (personal view), the protection should be framed in the broadest terms, 50 as to cover any medium of communication to the public namely, newspapers, periodicals, Radio and Television stations etc.' According to the question put forth in the Working Paper concerns the d. Should the protection be limited to what has actually ld it extend to all information, published or 8.3. The third matter to be protecte been published, or sou unpublished ?

A High Court has expressed the view that a journalist should not be askeditoidisclose the sources of his information.' ' The view of one Registrar of a High Court (personal ViCW)_, is that the protection should cover all information (not only the source of informa-

. ,_ _ . . 5 tion) obtained by the Iournalist in conﬁdence.

Shri Sahai's article in the Statesman (7th April, 1983.). Law Commission File No. F. 2(2)/33'LC. 3- N°- 12- Shri Sahai, the Statesman (7th April. 1933)-

Law Commission File No. F. 2(2)/831-C. 3- N0- 12- Law Commission File No. F. 2(2)/334-C, 5- N°~ 14- i 2

4. 5

5. Law Commission File No. F. 2(2)I83-I-C, S. N°- 12- Comments received on the second question .

Comment 3 received on the third question.

Comments received on the fourth question.

Corrmmts receiied on the ﬁfth question.

_ The Manipur Bar Association has expressed the view that a qualiﬁed privilege should be granted to Journalists who should not be required to disclose the source identity (of informant) or other conﬁdential communi- cations unless disclosure is necessary in the interest of "justice and public good".' 8.4. The fourth question put forth in the Working Paper elicited views as to whether the proposed protection should apply to all court proceedings (civil and criminal), and if not, to what proceedings it should be conﬁned. Shri Sahai's article makes certain points after mentioning the "Fourth Question", but the points made really pertain to the ﬁfth question and will be dealt with thereunder.

In the View of one Registrar of a High Court (personal view), the privilege "should be extended to proceedings in course of which evidence is or may be legally taken on oath except defamation actions against the publishers and proceedings before Commissions of Inquiry?

8.5. The ﬁfth Question in the Working Paper solicited views on the very important issue w ether there should be a privilege as such which would be absolute, or whether the judge should have a discretion in the matter. In his article in the Statesman. Shri Sahai (in the opening portion of his general observations), has stated as under :-

"It may straight-away be conceded that no right is, or can be absolute and that between two conflicting rights, society must decide which one must prevail, unless the two can be harmonized."

Somewhat towards the end of the article, when dealing with the speciﬁc question whether the privilege should be absolute or whether the Iudge should have a discretion, Shri Sahai has expressed the following further views :---= i "The point has already been made that no right is absolute and the journalists' right to confidentiality need not be absolute either. In such cases in which the interests of society overwhelm the rights of journalists, at court may compel disclosure. However, this must be done in camera and only the High Courts and the Supreme Court should have the right to compel disclosure. Some journalists still may want to withhold information, but if their conviction be so strong they must be prepared to take the consequences?

Mr. Eduardo Faleiro, M.P., Goa does not favour absolute immunity.

"Vi/hilst the principle of conﬁdentiality of sources of information may be recognised there must be an exception to this principle involving the consi» erations of public interest and promotion and advancement of justice."

It is the view of one Registrar of a High Court (personal view) that the court should have the discretion to allow or reject the request.

"No Court may require a journalist to disclose the source of informa- tion contained in the publication unless it is established to the satisfaction of the Court that disclosure is necessary in the interest of justice or national security or for the prevention of disorder or crime."5 Law Commission File No. F. 2(2)/83-LC, S. No. 17. Law Commission File No. F. 2(2)/83-LC, S. No. 12. Shri Sahai, The Statesman (7th April. 1983).

Law Commission File No. F. 2(2)/83-LC, S. No. 10. Law Commission File No. F. 2(2)/83-LC,S. No. _12.

'':''.''E''!'':''.

The views of the Manipur Bar Association, District and Sessions Court Lompound, Imphal have been thus communicated' :---

_ 'just as the legal professionals are given the statutory privilege of not disclosing what their clients have entrusted with them conﬁdentially, the Iournalists as a professional class should be given some qualiﬁed privilege by suitable enactment. The Iournalists should not be compelled to disclose the source of his information or the identity of their conformant as well as conﬁdential communication, unless the disclosure is necessary in the interests of justice and public good."

8.6. The Sixth and the last question put forth in the Working Paper was, whether the privilege should be allowed to be waived, and if so, by whom the journalist, the employer or the informant P The VlCW expres- sed by Shri Sahai in his article is that "without the informant's consent, no body should have the right (to waive). If he (the informant) has waived his right, the editor or publisher may use his discretion."

In the reply of one Registrar of a High Court (personal view) it is stated that the privilege should be capable of being waived by the journalist.'

1. Law Commission File No. F. 2(2)/8'3-LC, S. No. 17.

2. Shri Sahai's Article in the Statesman (7th April, 1983).

3. Law Commission File No. F. 2(2)/83-LC, S. No. 12.

Comments received on the sixth qw. stion.

Persons to be covered.

Publications to be covered.

Matter to be protected.

CHAPTER 9 RECOMMENDATIONS 9.1. On the basis of the materials contained in the preceding chapters, we now proceed to make our own recommendations on the subject un.der consideration. At the outset, we would state that in our view, information obtained on an understanding that the source will not be revealed, deserves to be treated on a special footing so to justify special provisions conferring appropriate protection. The lines on which the statutory amendments should run will be presently indicated in greater detail, with reference to the various issues that have been considered by us.' First, as regards the persons to be covered by the proposed amendment, we are inclined to include, within its scope, not merely the "professional journalist", but also the occasional or casual journalist, even "the lonely pamphleteer" of whom the Supreme Court of the United States was speaking? It is also not our intention to exclude, from the protection, editors and other senior management personnel to whom the information is conveyed in professional confidence, or the technical personnel who accompany the newsman, such as the cameraman, who may be involved in the gathering of information imparted expressly or impliedly in conﬁdence. In fact, as will be seen from the next paragraph (where we deal with the publications that should be entitled to the benefit of the proposed reform of the law), we are going to frame it in fairly wide terms so as to cover all mass media.

9.2. Secondly, regarding the publications that should be entitled to the proposed protection, the question to be considered is whether the protection should---

(i) cover only newspapers, or

(ii) cover newspapers as well as periodicals, or

(iii) also cover radio and television stations, or

(iv) be framed in the widest terms, so as to cover communication to the public.

any medium of After giving considerable thought to the matter, We have come to the conclusion that every medium of communication to the public needs to be covered. We note that section 15(2) of the Press Council Act concentrates on "newspaper, news agency, editor or journalist", but presumably that was because that Act was concerned primarily with the press. On principle, we see no reason for treating other media. on a separate footing. How this object of framing the reform in the widest terms so as to cover all media can be achieved is a matter of drafting, to which we shall address OUFSCIVCS when coming to the precise recommendations to be made for statutory amendment.3 9.3. The third question relates to the matter to be protected. We have found this to be a difﬁcult issue. We note that section 1§.(2) of the Press Council Act' confers protection only against disclosure Of U16 SOUFCC Chapter 7, supra. 7 _ _ Pratsburg v. Hayes, (l972) 408 U.S. 605, 92 S.G. 3616; 32 Law Ed. 2d 626.

Para 9.7, infra.

Para 3.6, supra.

'P*$"!"!"

32 33

of any news or information" _published_by a newspaper or received or reported by a news agency,' ulitor or Journalist. This would not cover unpublished information, other than the source.

_In England, section 10 of the Contempt of Courts Act, 19 31, gives im- miinity__to a person "for refusing to disclose the source of information con- tained in publication for which he is responsible, unless it be established to the satisfaction of the court that disclosure is necessary in the interest of justice or national security or for the prevention of disroder or crime". This is also somewhat narrowly drawn. \Ve appreciate that in principle, there is something _to be said for conferring protection on such unpublished information. The iournalist, for example, may consider it necessary to obtain background infor- mation which (though not itself intended for publication) may be required for verifying the accuracy of the information that is proposed to be published. Nevertheless, one cannot overlook the consideration that a protection for such unpublished information may occasionally create unforseen anomalies. We would, therefore, prefer to conﬁne the protection to the source only.

9.4. The fourth issue to be considered concerns the types of proceedings Types of to be covered by the proposed protection. In our opinion, all proceedings Pf°°°°din3s. in the course of which evidence is, or may be, legally taken on oath should be covered. Whether any exception should be made requiring disclosure in defamation actions is a matter of some difficulty. We would not, however, like to make any special provision on the subject to govern all defamation actions. The court, when dealing with the matter, will be expected to bear in mind the consideration of justice--an aspect which is dealt with in the next paragraph, where we discuss the status of the protec- tion to be conferred. . .

9.5. This brings us to the most important question concerned with Status ofthc the status of the proposed protection. A number of alternatives fall to be Pr°'°°"°n-

considered in this respect, namely :----

(i) an absolute privilege against disclosure may be conferred ; or

(ii) the court (or other body adjudicating the controversy) before which protection is claimed may be given a discretion to uphold or reject the request for protection (the decision to be arrived at in each individual case);

while giving such a discretion, as is mentioned in (ii) above, some criteria may be laid down to guide the CXCICISC of the discretion. « After devoting some thought to the matter, we have come to the conclusion that the matter should be left elastic, by vesting in the court a discretion in the matter, but Without going to the length of conferring a privilege as such on any particular class of persons for any class of publications. With a discretion so to be vested in the court, the court can, in each case, balance the need to protect conﬁdentiality of the source of the information (or the information itself, if so decided) against :--

(i) the interest of justice----a general consideration ; and

(ii) the demands of national security, prevention of disorder and crime,----considerations which may be relevant in special situations. __ I' 34 . To confer an absolute privilege would be a very simple solution, but having regard to the variety of considerations involved and the complexity of the subject matter, we do not think that a reform of the law on the ISSUC under consideration should be shaped as a "privilege". Th.e dis-

advantage of conferring an absolute privilege is that it introduces an element of rigidity into the law, which rniglit occasionally cause very serious an-onizilies. On the other hand, a discretion given to the court on the lines intiicated above will leave the I11;1T,t'CI' elastic.

_Waivei 9.6. Since we are not recornme.n::liiig tlic: coiiforrnent of :1 jiriz/ilegc "'°l°V'""- as such,' the question wiiether the privilege should be allowed to be waived, and if so, by whom, becomes academic, and we need not therefore pause 'to discuss it.

£53: Ir;1lFI}:??i<ll':'-ion 9.7. In the result, our recommendation is to insert a provision in the '6. .' L - . . ) . .

the: Evidmc, Indian hvidence Act, 1872 at the appropriate place (say, as section 132A), AOL somewhat on the following lines :

"132A. No court shall require a person to disclose the source of information contained in a publication for which he is responsible, r where such information has been obtained by him on the express agreement or implied understanding that the source will be kept conﬁdential".

Explanation.--~In this section»-

(a) 'publication' means 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".

R,co;mn,,nd_1,;0n 9.8. Having regard to the importance of a court order on the subject, *0 a-ﬁend lhc we rccornniend that a provision for appeal against an order directing or 1 dc f - -- - , . 2 ' ' .

pllf§c:éi,,cS,?, refusing to direct disclosure under proposed section 132A, l1V1(iCl'lCC Act,' provide for should be inserted in the Code of Civil Procedure, 1908, and in the Code ?,§;'f§'§L,,?Zfl,}i"3l of Criminal Procedure, 1978 at the appropriate place.

proposld scction 132A. Evidence Act.

1. Paragraph 9.5, suyra.

2. Paragraph 9.7. supra.

(K. K. MATHEW) CHAIRMAN (NASIRULLAH BEG) MEMBER (1. P. CHATURVEDI) MEMBER (P. M. BAKSHI) PART-TIME MEMBER (VEPA P. SARATHI) PART-TIME MEMBER (A. K. SRINIVASAMURTHY) M EMBER-SECRETARY Dated: September 9, I983, GIPN----S2c. 4-443 LAD (ND)/83-22-12-84--625

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