The Reporter’s Privilege

The reporter’s privilege is a professional privilege,the purpose is to maintain the trust relationship between journalists and confidential sources,to protect the stability of the journalist,to promote freedom of information to the public,to arouse the self-correcting mechanisms of the society,promoting social harmony and steady development.However,this privilege is contrary to discovering facts in the law of evidence,which deals with the rational distribution of rights and duties,so the establishment of the right is constantly controversial.The first chapter of this paper investigates the concept and characteristics of the reporter’s privilege.First,comparing domestic and foreign scholars about the definition of the right,I think the privilege is a limited right and reporters enjoy from disclosure confidential sources in news gathering activities in the lawsuit,which is based on the trust relationship between journalists and the source and the extension of social interest.Then,it analyzes three main characteristics of the privilege: first,it aims to protect the source rather than the content of the communication.Second,it is limited and unstable.Since the right brings together the value conflicts of individual,professional and social levels,whether journalists enjoy the right in specific cases depends on the discretion of judges.Third,because the interests of victims in criminal cases are combined with public security,private interests are more likely to exceed the freedom of the press compared with civil cases,so the privilege has a greater opportunity to apply in civil cases than criminal cases.The second chapter focuses on the theoretical analysis of the reporter’s privilege.First,it summarizes the different reasons for and against this privilege.The reasons for support include the personal rights of journalists and sources(avoiding self-incrimination,livelihood,privacy),the professional interests of the media(professional ethics,freedom of the press),and the social interests of the public(the right to know,to anonymous speech,media scrutiny).Objections include contempt of court,no restriction on press freedom,impact on justice and difficulty in application.Secondly,the value conflict includes three levels: the conflict in breaking the contract,tort and witness’ s obligation to testify;the conflict between the professional ethics of journalism and the court finding out the truth;the conflict between the freedom of the press,social harmony and judicial justice.In the face of these conflicts,on the one hand,when the individual confronts with the public power,attention should be paid to the protection of individual rights.And the duty of witness to testify is not absolute,and it is the existence of the reporter’s privilege that to prevent the absolute duty of testimony from influencing freedom of the press and other important social interests.Moreover,we should respect the professional ethics and the incentive value of litigation.Finally,we should turn our eyes from the tools of the reporter’s privilege to the level of human rights protection,considering the reasons for witnesses to refuse to testify to protect the rights of witnesses.In a word,these conflicts should be unified in the common goal of justice.What’s more,from the perspective of evidence law,the reporter’s privilege is an important human rights protection system,which helps to reduce the evidence produced by forcing journalists to disclose sources,embodies the value orientation of harmony of evidence law,and meets the dual requirements of "seeking truth" and "seeking goodness" of evidence law.It can also avoid the news as a supplementary litigation caused by anecdotal evidence,preventing malicious application reporter disclosed information of extended trial period,opportunistic risk of increased litigation burden on the other side.Finally,the Internet makes the media less able to protect themselves and more in need of the protection of special rights.However,the distrust of the public and the enhancement of the government’s ability to investigate and collect evidence weaken the support of rights,making it more difficult to establish and apply.The third chapter explains the rule system of the privilege.First,the subject of this privilege is journalists,not sources,including natural and legal persons.Second,the age of citizen journalism must grant this right to the Internet media,otherwise it will defeat the fundamental purpose of its existence--the free flow of information.However,if the Internet media have this right,it is faced with the problem of broad definition of journalists,and it is a better scheme to apply the method of presumption plus the cancellation of balance test to define journalists.Thirdly,the object of this right includes both behavior and material,like work and non-work achievements,secret and non-secret information,news interview materials and oral testimony of journalists.And the application of this privilege requires a balancing test,with the disclosing party assuming the burden of proof and giving prior notice to give relief on appeal.Finally,journalists lose special protection when non-secret information,sources break the law,and journalists are witnesses,whereas in libel cases,it is easier for journalists to get special protection because of the higher burden of proof on the party requesting disclosure.The fourth chapter discusses the way of the reporter’s privilege in China.First of all,with the development of Internet media,false news occur frequently in China.However,due to the lack of constraints of press law,the damage caused by that is irreversible and the cost of protecting rights is so high.Moreover,the right may conflict with the personality,especially the right of reputation,portrait and privacy.And it is contrary to the purpose of pursuing the truth and punishing the crime,but it is in accordance with the trend of protection of human rights in China’s criminal procedure.Secondly,the freedom of speech,press as well as confidential correspondence stipulated in the Constitution in China,which belong to the freedom of the press,and is the theoretical basis for the establishment of privilege in China.On the legislative level,the compulsory testimony in criminal proceedings and the obligation to provide evidence require journalists to testify,while journalists in civil proceedings as defendants are required to disclose information sources,but there is no legal provision of the reporter’s privilege.On the practical level,there is a certain need for the special immunity of journalists in China’s civil cases,although these needs are not strong,but the preparation of the design helps to spread the concept of freedom of the press,to protect the basic rights of participants in litigation.Finally,in terms of system construction,we can refer to the world standard discussed in Chapter 3 and take into account the specific situation of China.Because of the frequent occurrence of false reports in China,we should mainly protect the subjects with press cards or journalist visas;In the protection method,following the principle of individual case balance.In criminal proceedings,requiring journalists to disclose information should be the last resort,and a judge’s writ should be applied for to search journalists’ news articles.In non-criminal cases,the applicant should bear the burden of proof to prove the necessity of disclosure.