Reporter’s Privilege in the Era of the Internet

Abstract

Journalists’ right to use confidential information and anonymous sources is considered to be one of the cornerstones of press freedom and democracy. The aim of reporter’s privilege (or “shield law”) – a reporter’s protection from being compelled to testify about confidential information or sources – is to safeguard the public’s right to know by protecting the rights of journalists and their use of confidential sources. In the era of traditional media (print, television, radio) it was relatively easy to define who is the “reporter” in reporter’s privilege, i.e. who and which media belong to the realm of shield laws. The internet, however, have challenged the traditional conceptions and apparently caused confusion among legislators and judiciary in different countries. It is not at all clear anymore who is a journalist and who or what should be protected by the reporter’s privilege. The research question of our case study is: How is the scope of the reporter’s privilege defined in the legislations six countries? In other words, who are the subjects of reporter’s privilege and who or what are protected by reporter’s privilege? We build a heuristic model (continuum) of these definitions. In one end of the continuum reporter’s privilege is technology neutral and applies to anyone providing a message in public (as in Finland). In the other end of the continuum reporter’s privilege is restricted only to the professional journalists (as in Germany or in the federal shield law bill reintroduced in U.S Congress in Sept. 2011). We call the former a universal right and the latter a guild privilege. Most countries seem to stand between these two extremes. Reporter’s privilege as a universal right acknowledges the internet as an equal medium with traditional media and the citizen journalists or even bloggers (as in Finland and Australia) as equal actors with professional journalists. The conception of guild privilege reflects either an outdated, pre internet legislation, or a deliberate aim to restrict the privilege to the professionals even in the era of citizen journalism. Our claim is that theoretically the former reflects the ideals of public sphere by Jurgen Habermas in which individuals congregate to discuss matters of mutual interest, while the latter is a continuation of libertarian theory of the press emphasizing the role of the news media as an institution. We compare in our paper the differences between the conceptions of “reporter” in both ends of the continuum (Finland, Germany) and in representative countries between these extremes (Australia, Germany, Norway and Sweden as well as the bill proposed in the U.S). We also conduct a qualitative text analysis about how divergent legal outcomes concerning the domain of the reporter’s privilege have been argued in the academic and professional discussions. Empirical data of our paper consists of legislation (and a bill proposal in the case of the U.S) of the reporter’s privilege in the countries mentioned, and selected texts of academic and professional journals. We consider international comparison of the reporter’s privilege important because many countries are either planning or revising shield laws in a moment (for example Netherlands, Norway, the U.S). The role of the internet and citizen journalism is a major concern in these undertakings.