This kind of procedure is nothing new. Back in the 70s, an English court decided you can get an injunction compelling someone to disclose information about another person, in circumstances where the person bound by the order is mixed up in the wrongdoing of that other person. This kind of order is named after the case that spawned it; it’s called a “Norwich Pharmacal order”.
This is one of the reasons why media lawyers like me thought the Morrison government’s plan to “unmask trolls” was stupid. We can already do that, and have been doing it for years.
Anyway, it is likely that Telstra will end up handing over PRGuy’s account information – not because it chooses to, but because it will be forced to.
Let’s consider an alternative scenario: PRGuy learns dodgy stuff about Yemini, but doesn’t tweet it. PRGuy instead approaches a journalist from a media organisation such as this one. The journalist then publishes a story about Yemini using that information, for which PRGuy is the anonymous source.
Yemini could sue the journo and the masthead for defamation; whether he would win is another question. But if he tried to get information about the source – about the identity of PRGuy – he would fail.
Generally, neither the journo nor the masthead would have to identify PRGuy in the course of handing over relevant evidence to Yemini through “discovery”. They would be protected by a principle called the “newspaper rule”, which recognises the public interest in news media protecting the identities of sources.
Further, they would be protected by “shield laws”, which give effect to the presumption that a journalist/source relationship should remain confidential. In NSW, this is seen in the Evidence Act 1995 (NSW) s 126K.
Why do journos’ sources get protection but PRGuy doesn’t? The way we access information has radically changed in my lifetime. Not that long ago, media outlets like this one were the only option for news. These days, quality journalism is supplemented by a cacophony on social media and elsewhere. Some of it is credible and valuable, and some of it is not.
The law protecting journalists’ sources was developed with traditional models of journalism in mind. New models of journalism – or something in the vicinity of it – are treated differently. Anonymous Twitter accounts may drop information in the public interest, but that doesn’t mean the law respects the anonymity that might accompany the platform.
So what does that mean for whistleblowers who don’t want to end up spending a fortune on media lawyers for sharing the truth?
Go to someone credible rather than sharing it yourself on Twitter. Look at intelligence contractor Edward Snowden: when he leaked the gory details of PRISM, he did so through The Washington Post and The Guardian. Snowden is a smart dude. If you are going to wreck the intelligence-gathering operation of Western civilisation, do so as responsibly as possible.
Compare Chelsea Manning, who leaked classified intelligence via WikiLeaks. The Manning and WikiLeaks mode of operating had more of a “freedom of speech” vibe about it, but people went to jail. Julian Assange’s libertarianism translated to a failure to filter what he published. He did not ensure the details of what was released always served the public interest. It has polluted his legacy.
PRGuy is a very different kettle of fish but, like Assange, the “guy” has done things his or her own way.
The tragedy of the situation is that the activism of PRGuy is a product of the failure of the majority of Australia’s traditional news media organisations to provide responsible coverage of state governments’ responses to the COVID-19 pandemic. Many journos shrieked for “freedom” along with the far-right nutcases, including people who’ve barracked for Yemini .
PRGuy shrieked a different tune. It was a lefty antidote for the sickness of selfishness that thwarted our response to the pandemic.
The need for PRGuy was created by the failures of the traditional media, and now his identity will be exposed by law designed for traditional media. The defamation litigation battle to follow promises to be epic.
Michael Douglas is a defamation lawyer at Bennett + Co, and Senior Lecturer at UWA Law School