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Compelling Journalists to Disclose Sources: Two Recent Decisions from Europe and New Zealand

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Courts continue to struggle world-wide with the issue of whether journalists should have immunity or privileges preventing them from being compelled to disclose confidential sources. New Zealand judges have previously taken a pragmatic approach in order to avoid compulsion if at all possible. However, New Zealand law has been changed recently to strengthen the position of journalists. In this note, I compare a decision of the European Court of Human Rights, Financial Times Ltd v the United Kingdom, and a New Zealand High Court decision, Police v Campbell which tested the new legislative protection for journalists. The analysis reveals that although the Financial Times decision does not represent a new direction for the ECHR, it does emphasise that the starting point in the United Kingdom should always be a presumption that disclosure of sources is contrary to the public interest, and requires something exceptional to displace it. In contrast, Campbell suggests that the New Zealand statutory presumption against disclosure is to be treated as a more open-ended discretion involving balancing of the interests involved. I conclude that the European approach is preferable, and that if New Zealand courts carry out a proper analysis of the new provision using the New Zealand Bill of Rights Act 1990, this could be achieved.

Document Type: Commentary

Publication date: July 1, 2010

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