Defamation law is a complex area, balancing the protection of individual reputations against the importance of freedom of speech.
A key aspect in defamation cases involving media defendants is the newspaper rule, which offers special protection to confidential sources in the interests of preserving the free flow of information.
In this blog post, I explore the concept of the newspaper rule and its application in defamation cases, drawing on the recent Western Australian case of Poland v Hedley [2023] WASCA 69.
The Newspaper Rule: Definition and Purpose
The newspaper rule is neither a rule of evidence nor a rule of law, but rather a rule of practice in defamation actions (Poland v Hedley, [86]).
It generally prevents courts from compelling media defendants to disclose their confidential sources of information during the pre-trial process (ibid).
This protection against disclosure exists only prior to the hearing of the action, and not at trial (ibid, [87]).
The rule is grounded in the recognition of public interest in the free flow of information (ibid, [88]).
It supports investigative journalism, a vital ingredient of a healthy society, by allowing journalists to protect their sources' confidentiality, thus encouraging information sharing (ibid).
This protection extends to media defendants in analogous interlocutory applications, such as preliminary discovery (ibid, [89]).
The newspaper rule is designed to protect the identity of informants, not the information itself obtained from them (Poland v Hedley, [90]). However, the rule may protect the information if its disclosure would reveal the informant's identity (ibid).
The court exercises discretion in determining whether to require disclosure of a confidential source during the interlocutory stage, taking into account the interests of justice and any special circumstances (ibid, [91]).
Factors Influencing the Court's Discretion
In deciding whether to require disclosure of a confidential source at the interlocutory stage, the court considers several factors depending on the specific case.
These factors may include the manner in which the information was obtained and whether it was obtained lawfully (Poland v Hedley, [93]).
Additionally, the court may be more inclined to order disclosure if the defendants raise the identity and integrity of their confidential sources as part of a qualified privilege defense (ibid, [94]).
Special Circumstances and the Newspaper Rule
The newspaper rule may be overridden by special circumstances or if it is necessary in the interests of justice (Poland v Hedley, [92]). For instance, if the plaintiff may be left without an effective remedy due to the defendant's statutory defense of qualified privilege, the court may compel disclosure to enable the informant to be sued or joined as a defendant (ibid).
Applying the Newspaper Rule in Poland v Hedley [2023] WASCA 69
The Poland v Hedley case provides a valuable example of the newspaper rule's application and the court's discretion in ordering the disclosure of confidential sources. In this case, the court ultimately ordered the production of audio recordings of communications with the confidential source (Source B) for several reasons, including special circumstances (Poland v Hedley, [106]).
The fact that the identity of Source B was already known to the plaintiff, and that the issue revolved around the content of the communications, counted strongly against applying the newspaper rule to refuse protection (ibid, [98], [100]).