The Applicant, a world-renowned surgeon of the surgical technique, osseointegration, is suing Nine Network Australia, the broadcaster of 60 Minutes, the publisher of The Sydney Morning Herald & The Age, and three journalists (the Respondents) for defamation. The defamatory imputations were alleged in a 60 Minutes story and series of newspaper articles produced by the Nine Network in September 2022.
The defamatory material purported that the Applicant was negligent with post-operative care, leaving patients in agonising pain with infected limbs. It was further alleged that the Applicant failed to caution patients of the risks of infection, and that the Applicant employed high-pressure marketing strategies for the surgical procedure.
A trial regarding the publications has been ongoing since September 2023 before Justice Wendy Abraham. Recently the Applicant took action to have the journalist privilege pursuant to s126K (1) of the Evidence Act 1995 (Cth) regarding confidential sources revoked.
In the circumstances, Abraham J referred this part of the trial for a separate hearing before Justice Robert Bromwich.
What is journalist privilege?
Section 126K of the Evidence Act provides protection to journalists regarding the identity of informants in the course of their works and investigations. Section 126K (1) provides that:
If a journalist has promised an informant not to disclose that informant’s identity, neither the journalist nor their employer can be compelled to answer any question or produce any evidence that would disclose the identity of the informant or enable that identity to be discovered.
In Ashby v Commonwealth of Australia (No. 2) (2012) 203 FCR 440, it was said that this provision is premised on the importance of the protection of journalist’s sources and the public interest in permitting the free flow of information to the news media.
Alternatively in John Fairfax & Sons Ltd v Cojuangco (1988) 165 CLR 346, it was determined that the public interest in the disclosure of the identity of journalist informants demonstrates that there remains a paramount interest in the administration of justice. Accordingly, s126K (2) of the Evidence Act seeks to uphold such a notion. Section 126K (2) provides:
The court may, on the application of a party, order s126K (1) inapplicable if it is satisfied that, having regard to the issues of the proceedings, the public interest in the disclosure of the informant’s identity outweighs:
- Any likely adverse effect of the disclosure of the informant or any other person; and
- The public interest in the delivery of facts and opinion to the public by news media, and the ability of the news media to access sources of facts.
The Applicant submitted under s126K (2) of the Evidence Act for an order that the Respondents disclose the identity of 13 of the Confidential Sources.
The Respondent’s submissions
At the hearing commencing 10 November 2023, one of the journalist respondents was cross-examined and counsel for Nine Network Australia gave submissions pertaining to the confidential sources. In summary, the Respondents submitted the following.
- The sources were confidential sources protected by s126K (1): The Respondents maintained the initial submission that the sources were promised to be confidential and therefore were not to be disclosed. Despite the Respondents failing to document the promise of confidentiality in an affidavit prepared in April, it was submitted that the nondisclosure was implied from the mere labelling of these sources as ‘confidential.’
- Confidentiality as an exception: Generally, the accepted standards of the journalist profession regarding confidentiality provides that promises of confidentiality should be an exception rather than a rule. In other words, journalists’ promises should not be made without first considering the source’s motives and pressing sources to be quoted ‘on the record’. This expectation is reinforced in the Nine Entertainment Code. Accordingly, the Respondents denied that there had been no attempt to persuade confidential sources to go on the record.
Further, the Respondents submitted that they were initially undertaking research into the topic of osseointegration, not the Applicant. Accordingly, the only reason for the offer to go off the record was so that the sources could feel comfortable, therefore inferring that none of the sources had an ill motive to provide harmful information about the Applicant.
Nonetheless, the Respondents submitted that they had appealed to the sources directly on multiple occasions to request a waiver of their confidentiality. However, the sources denied these requests providing no consent to have their identities disclosed. Overall, these submissions suggest an alignment with the Nine Entertainment Code.
- Onus of the Applicant: The Respondents submitted that for the identity of the sources to be revealed, the Applicant must prove to the Court that the public interest in disclosure outweighed the likely adverse effects of the disclosure on the source, and the public interest in the media be able to access sources.
- Madafferi v The Age Company Ltd (2015) 50 VR 492 (Madafferi) was used to address the discretionary element of s126K privilege, where it was held that the adverse effects resulting from the disclosure must be probable. In this case, the Respondent’s submitted that the apt adverse effects included an increased angst amongst the sources that they would be sued by the Applicant, and that this was a likely outcome of disclosure. Counsel also submitted that there are apparent professional and economic consequences of disclosure, and a likely adverse consequence for public interest in journalism. Counsel further submitted that as The Applicant claims to know the identity of half the sources, the likelihood of adverse effects such as litigation is increased.
To summarise, the Respondents sought to foster a sense of urgency and importance in maintaining the confidentiality of the informants. Through the explanation of the premise on which the promises of confidentiality were made, and the submissions regarding adversity, the Respondents addressed the s126K Journalist Privilege.
The Applicant’s submissions
In accordance with s126K of the Evidence Act, the Applicant’s submissions sought to prove that the public interest in the disclosure of the sources outweighs any possible adverse effects on the sources and/or others, and the ability of the news media to receive and provide facts. The Applicant’s submissions in relation to s126K (2).
The making of promises under s126K (1) 1
Pursuant to s126K (1), the Respondents bear the onus of proving that sufficient promises were made to the informants as to the maintenance of their confidentiality.
A “promise” which is satisfactory for the condition precedent in s126K (1) must be:
- Express and not implicit in any way;
- A promise not to disclose the source’s identity as the source of the particular information in question; and
- The promise is anterior to the provision of that particular information.
To determine whether satisfactory promises have been made by a journalist to an informant, the matter goes to the credibility of the Respondents, and in this case was limited to the affidavit evidence. For this reason, the Applicant made numerous submissions which spoke to the limited credibility of the Respondents. Examples of the Applicant’s submissions which sought to lessen the Respondent’s credibility included:
- Drawing the Court to a series of discrepancies in the Respondent’s numerous affidavits’, and the lack of supporting contemporaneous notes.
- Submissions regarding the Respondent’s inaccurate recount of events. Particularly, the Respondents failure to clearly and accurately recollect the promises of confidentiality to sources in file notes and the April Affidavit. A failure to provide evidence of the promises made could prevent the s126K journalist privilege from being applicable.
- The Applicant also made submissions to the credibility of the Respondents by bringing attention to a series of deleted communications with sources and the Respondents denying obvious source identities which the Applicant was aware of.
A particularly notable factor that might determine the presence of a substantial s126K (1) promise is the terminology of the promise. Many of the expressions commonly used by the Respondents when discussing confidentiality with the sources, such as “off the record” and “background only” are context-dependant and have varying meanings with space for interpretation. It must be additionally recognised that there is a grave difference between a source’s name being a permanent secret, and the source’s name not being used in the publication only. From these submissions, the importance of the specific agreement between the journalist and the source being corroborated and recorded clearly, is evident.
Public interest in disclosure
Disclosure under the Applicant’s s126K (2) application gives rise to a public interest under the s29A defence in the Defamation Act.
The section 29A defence goes to the publication of defamatory matters if it can be proven that the matter concerns an issue of public interest, and the publisher reasonably believed that the matter was of public interest.
Section 29A (3) provides a non-exhaustive and non-mandatory list of factors which the Court can consider in determining the applicability of this defence. Most relevant to this case is s29A (3)(f), which points the Court to confidential identities of sources, and whether there is good reason for that person’s identity to remain confidential.
The recent judgement in Russell v Australian Broadcasting Corporation (No. 3)  FCA 1223 is relevant to explain how the disclosure of sources is necessary to prove a s29A defence and is therefore in the public interest. This case held that an enquiry focused on the reasonableness of the Respondent’s conduct in publishing the matter bears significant importance. Although, to determine such reasonableness involves a close analysis of the Respondent’s dealings with the sources. Namely, it must be assessed what was known about the sources, their expertise and experience, potential biases, prejudices and motives for speaking to the journalist. However, this could not meaningfully be tested by the Court without the disclosure of the sources.
For example, the Sydney Morning Herald article in question in the defamation trial referred to a ‘number of high-profile surgeons’ making defamatory statements regarding the Applicant. The assertion that the surgeons were ‘high-profile’ cannot be meaningfully tested without their identities being disclosed.
To consolidate the prevalent public interest in the disclosure of the sources, it must be understood that the confidential sources in question were the central avenues of information for a majority of the defamatory matters in dispute. Accordingly, to test whether it was reasonable for the journalist to rely on the confidential sources information in publishing the defamatory article, the identities of the sources must be disclosed.
Public interest in disclosure outweighs the possible adverse consequences
The Applicant submitted the impugned credibility of the Respondents deems it difficult to assess the possible adverse effects. If any, on the sources if their identities were to be disclosed.
The main adversity the Respondents submitted was likely to impact the sources upon disclosure, was litigious actions by the Applicant. A source being lawfully pursued for conceivably indefensible, tortious conduct cannot be regarded as a compelling adverse effect, particularly not one capable of outweighing the previously delineated public interest. An example of a substantial adverse effect can be contrasted in facts of Madafferi, where the defamatory imputations were in reference to a Calabrian mafia in Melbourne. Here, the plaintiff was at risk of serious injury or personal death, two effects which are incomparable to mere litigation.
It’s worth noting here that some of the confidential sources must have disclosed the fact that they were in contact with a journalist to third parties. For instance, as many of the confidential sources are medical practitioners, they must have told patients of their engagement with the Respondents while obtaining records from these patients. As the confidential sources have likely disclosed their involvement in the research for the alleged defamatory stories, the fear of adverse possession can be inferred to be minimal, otherwise there would have been complete silence on the matter to third parties.
Bromwich J reserved his decision at the closing of the hearing which concluded on 15 November 2023. A judgment is expected prior to Christmas and before the remainder of the trial continues before Abraham J in March 2024.
This article was written by Nicholas Pullen, Partner and Portia Pascuzzi, Law Clerk.