The Challenge of Internet and Social Media on Shield Law Legislation: Four Dimensions of Reporter's Privilege
8 Pages Posted: 31 Mar 2017
Date Written: 2017
In spite of commonly shared understanding of the benefits of shield laws as a vital part of journalism’s watch dog function in democratic societies, there is a great deal of variation on how shield laws are regulated in different countries, states and territories. The scope of shield law, the persons covered, interpretation power of judges, and the exceptions for the main rule vary considerably among jurisdictions. The differences reflect not only details of stipulation but also fundamental principles behind the objectives of legislature. One of the main dividing factors is the outlook on Internet based contents like blogs, podcasts or websites like WikiLeaks. It is not at all clear anymore who is a journalist and what kind of action can be defined as journalism.
The objective of this paper is to present an analytic classification of existing shield law legislations based on international comparison. Classification is based on analysis of the contents of shield law/reporter’s privilege legislations in Australia and its territories, Finland, Germany, Norway, Sweden, and the USA (states).
There are plenty of analyses of shield laws at national level but international comparisons – especially over language barriers – are rare. The research frame and the results of this study are unique. This classification helps to identify the key differences in the legislations and hopefully promotes the discussions about the limits and the possibilities of different approaches correspondingly.
As a result of the comparison the approaches of different jurisdictions on shield law are divided here in four categories: affiliation approach, function approach, intention approach, and universal approach. The main characteristics of the categories are as follows.
Affiliation approach limits the realm of privilege to professional journalists working in traditional news organizations (print, radio, television). In function approach the focus is not on one’s affiliation with the media organization but on whether the person functions as a journalist. This extends the reporter’s privilege to freelancers and non-traditional media like web sites. Like function approach, the intent approach has been applied in cases where the realm of shield law has been extended outside the journalists of traditional news media. Intent approach asks whether the person had the intent to disseminate to the public the information she/he has obtained through investigation. Finally, universal approach refers to a shield law legislation which guarantees the right to protect the confidentiality of the information sources to everyone who has drawn up a message or delivered it to the public, personal blogs included. There are examples of all these approaches in the legislations analyzed for this study.
Keywords: shield law, reporter's privilege, internet, social media, WikiLeaks
JEL Classification: K29
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