| Summary: | 碩士 === 國立臺北大學 === 法律學系一般生組 === 107 === In the development of democracy, the press has been assumed as the “fourth estate” to supervise and prevent the government from corruption, so as to be the “watchdog” or “social instrument” for guarding democracy. For fully implementing these tasks of the press, it is necessary to guarantee a sound press system and maintain its independence and autonomy. “Journalist’s privilege” is rightly the measure that safeguards system, and it even has become the “ethic code” of journalists to avoid the chilling effect and ensure the value of “free flow of information”.
However, even if the journalist’s privilege has been discussed abroad for a long time, there has been no journalist’s privilege of Taiwan yet. Moreover, there have been some arguments that how to explain its theoretical basis and definite content- some journalists may refuse to give testimony under certain circumstances. Additionally, in the development of technology, the press wasn’t seemed to be so unique and professional. The public can also use the internet to engage in newsgathering, collecting, editing and disseminating the news to other pepole. Thus, the public can fullfill the same function as the “traditional news media” and no longer passively receive the information. Accordingly, its seemed that the function of the press to supervise the government has been challenged. Also, the changing has affected the discussion of the aforementioned privilege on the basis of traditional theory- the fourth estate.
According to the above core ideas, this article focuses on “journalist’s privilege” as the study topic, based on “the fourth estate theory” of institutional right- “freedom of the press”, and introduces the journalist’s privilege in America and tries to reinstitute the operational mode in Taiwan. The purpose of this article is to find the solution reconciling “freedom of the press” and other “social interests” in the generation of evolving conception of “journalist”.
This article is divided into five chapters. First of all, this article will introduce the journalist’s privilege in America as the comparative law research, providing completely overview of the judicial decisions and legislations, and besides, not only establish above material for discussion in this article, but reflect on the conceptual evolution of “journalist” that’s how to influence the existence and content of the journalist’s privilege. Moreover, this article will analyze and organize the relevant opinions about journalist’s privilege.
This article also focuses on the “criminal litigation” as the orientation of other realms (e.g. civil litigation and administrative litigation), which provides an in-depth explanation of how the testimony privilege conflicts with “fair judgement” and “discovery”; Besides, further discussing the different between the journalist’s privilege and the other testimony privilege in order to design the legal format.
Finally, this article will try to propose the model of journalist’s privilege which adopts “formal approach” and “function approach” to decide whether the journalists, as the witnesses, have to disclosure the confidential sources or not. Also, this article codifies the doctrine of the Criminal Procedural Act that could operate in Taiwan, and expect to find the “better” working in the digital age.
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