The new starting point will be that if a journalist has promised not to disclose an informant’s identity, that journalist or their employer cannot be forced to give evidence that would disclose the informant’s identity. However, a court may direct a journalist or their employer to give identifying evidence, if the public interest outweighs both any likely negative effects on the informant or anyone else, and the media using sources to communicate facts and opinions to the public.
The informant can consent to their identity being disclosed.
Similarly, the new starting point will be that information an informant gives in confidence to a confidant in the confidant’s professional capacity where the confidant was obliged not to disclose it (like a journalist) is protected. A court must direct the information not be disclosed in evidence if it is likely the informant would be harmed if the confidential information is disclosed, and if the chance and severity of the harm outweighs the importance of the confidential information being disclosed.
The informant can consent to the confidential information being disclosed.
The protection to journalists’ sources and the information received is not absolute and will depend on the individual circumstances of cases. The first few cases where the journalist shield laws are applied may give a clearer guide.
ERNEST CHUA is a former associate to a Judge of the Supreme Court of Western Australia.