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Report No. 93

Chapter 7

The Issues for Consideration

7.1. Matters of detail requiring consideration-classes of persons to be protected.-

Assuming that the law on the subject under consideration is to be changed by suitable legislation, there arise for examination a number of questions of detail and difficulty. These questions concern the quality and range of the protection to be conferred, as regards-(a) the classes of persons to be protected, under the head of journalistic privilege, (b) the classes of publications to be so protected, (c) the classes of matter to which the protection should extend, (d) the types of proceedings to be covered by the proposed protection, and (e) whether the protection should be in the shape of a privilege of a class of persons, or whether it should leave some discretion to the Court. The issues for consideration were set out in the Working Paper that had been circulated by the Commission on the subject.1

The first question that arises is as regards the classes of persons to be entitled to the proposed protection. Should the proposed protection cover only professional journalists, or should it also extend to part-time contributors and other persons connected with the publication, when acting in the process of gathering or processing of information? There are, thus, two alternatives. The first alternative would be the narrower of the two. The narrower course, which would confine the protection to the professional journalist, has, no doubt, this argument in its favour, that the professional body of the journalists and the Press Council could help enforce the requisite standards.

However, the framing of the protection in such narrow terms would have the effect of precluding persons who engage themselves in journalism occasionally and not as a matter of their regular vocation. As was observed by the Supreme Court of the United States, "the lonely pamphleteer who uses carbon paper or a mimeograph may as much have a right to protection as a larger metropolitan publishers"2. Further, it can be argued that if the protection is to be effective, it might have to cover the editor and other senior management personnel to whom the information is conveyed, and should also cover persons who accompany the newsmen, such as the cameraman.

1. Working Paper dated 19 February, 1983.

2. Brenzburg v. Hayes, (1972) 408 US 665: S Ct 2646: 33 Law Ed 2 d 625.

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