Due to the nature of their work, journalists and media organisations may find themselves subject to defamation proceedings, in which case the principles contained in the Defamation Act 2005 (SA) apply, see: Defamation.
There are, however, a number of other relevant laws that specifically relate to journalists and media organisations.
Protections under Part 8A of the Evidence Act 1929 (SA), commonly referred to as shield laws, mean that a journalist cannot generally be compelled by a court to answer any question, or produce any document, that discloses the identity of a confidential informant [see section 72B of the Evidence Act 1929 (SA)].
Where an informant has provided information to a journalist on the understanding it may be published in a news medium, but has a reasonable expectation that their identity will also be kept confidential, a court cannot compel the journalist to disclose that information to the court. The court can, however, upon application by a party to the proceedings, order that the protection does not apply and that the informant's identity be disclosed, in circumstances where public interest in disclosing the identity of the informant:
- outweighs any adverse effect of the disclosure on the informant; and
- outweighs public interest relating to the communication of information by news media generally; and
- outweighs the need of the news media to be able to access information held by potential informants.
See Evidence Act 1929 (SA) s 72B(4).
Publication of information that is in the lawful interest or public interest
The Surveillance Devices Act 2016 (SA) regulates the recording of private conversations or activities and the publication of those recordings, including by media outlets.
Generally speaking, a surveillance device must not be used to record a private conversation or activity without a person's consent [see Surveillance Devices Act 2016 (SA) ss 4 - 8]. There are, however, exceptions to this rule if the use of certain devices is to protect a person's lawful interest [see ss 4(2)(ii) and s 5(4)(b)] or is in the public interest [see s 6].
Where a device is used to protect a person’s lawful interests, the information obtained can only be used, communicated or published in specific circumstances. One of the circumstances allowed for in the Act is where the information is used, communicated or published to a media organisation [see s 9(1)(f)].
A media organisation is also able to use, communicate or publish information obtained from certain surveillance devices where the device was used in the public interest [see s 10(2)].
If a media organisation were to re-publish such information from a device that was not used to protect a person's lawful interest, or was not used in the public interest, the maximum penalty that applies is a fine of up to $50 000 for body corporate or a fine of up to $10 000 for an individual [s 10(1)].
What is considered to be in the lawful interest or public interest will be determined objectively by considering the context and circumstances of the surveillance device being used, and weighing this against competing interests such as the need to protect personal privacy
Order from Supreme Court
It is possible to apply to the Supreme Court for an order to allow the use, communication or publication of information [s 11]. This is likely to be necessary where a person wishes to use the information obtained from a surveillance device for civil proceedings. Applications are governed by the Supreme Court Special Applications Rules 2014 (SA) [Chapter 3 r 13(ba) and 14(3)(b)]. Filing fees will apply.
The content of the Law Handbook is made available as a public service for information purposes only and should not be relied upon as a substitute for legal advice. See Disclaimer for details. For free and confidential legal advice in South Australia call 1300 366 424.