« A note about data breaches | Main
Talley’s source of contention
By Steven | February 10, 2026
An overlooked part of Talley’s Group’s defamation case against TVNZ is its attempt to get TVNZ to disclose its confidential sources. It applied to court to make TVNZ give them up.
This was a real test of our journalist source protection regime. In the two leading cases up to now, the courts had (effectively) refused to protect journalists’ promises of confidentiality. (I use the word “journalists” loosely; one was Cameron Slater, which may help explain why his claim to protect sources failed. The other, though, was John Campbell, who was trying to protect the identity of one of the Waiouru army base medal thieves).
Talley’s was after the identities of people TVNZ described as whistleblowers, some of whom were still working for Talley’s. They had made serious allegations about the inadequacy of safety protections for workers at Talley’s factories.
In litigation, the parties have to exchange relevant documents. Talley’s complained that TVNZ had withheld 145 documents that showed how it prepared its programmes. “Consequently,” said the judge, “there are virtually no contemporaneous documents to challenge what TVNZ chose to record.”
TVNZ was claiming a public interest defence, which meant that it had to show it behaved responsibly. How could Talley’s contest that if it didn’t have access to documents showing how TVNZ dealt with its key sources, and whether those people might be unreliable or malicious?
For its part, TVNZ admitted it had been “very conservative” in choosing which documents to keep back. After all, Talley’s had lots of information about its own staff and might well be able to piece together information and work out who the informants were. Talley’s thought this unfair and self-serving. But Justice Andrew accepted it was appropriate. Interestingly, he said he could have ordered TVNZ to deliver up the documents so he could decide for himself whether they should be withheld. But he didn’t think it was necessary here.
The case is helpful in bedding down the importance of source protection. In particular, the judge cites a few foreign decisions that say, in summary:
The greater the legitimate public interest in the information, the greater the importance of protecting the source. If the purpose of the disclosure is to bring wrongdoing to public notice, the Court have held that it will deserve a higher degree of protection.… especially as they approach a category of source that is akin to an informer.
The judge said repeatedly that source protection is vital to the proper functioning of a liberal democracy. The flow of significant information hinges on “trust in the integrity of journalists’ promises, and their ability to keep them”. (I can’t resist pointing out that, to truly display integrity, journalists would have to let their sources know that their promises might be overruled by a judge, but I suspect journalists tend not to have that conversation).
The judge accepted that not knowing the sources’ identities would hamper Talley’s in its arguments. He said there was a “very direct connection” between those sources and the defamatory allegations. He noted that diligent verification is at the heart of the responsible communication/public interest defence, and that’s hard for a plaintiff to attack when it doesn’t know the sources. The judge admitted that the sources might be malicious, which should have put the heat on TVNZ to check their allegations more carefully. But how does Talley’s get at that?
But the judge said these concerns should not be overstated. The onus is on TVNZ to prove its responsible conduct, and TVNZ too may be hampered by not being able to call its sources. (I didn’t see the trial, but I’m guessing that TVNZ’s evidence was that the confidential sources all seemed extremely genuine and had close and direct experience with what was happening in the factories; that TVNZ questioned them hard, and that their stories seemed to stand up. I don’t want to be too cynical about this. But that sort of evidence is predictable and very hard to challenge.)
The judge said that TVNZ displayed its responsibility in a variety of ways that were open to challenge: it obtained documents, including photographs; it interviewed safety experts and people with knowledge of Talley’s health and safety practices; it provided viewers with some information about the whistleblowers, such as where they worked; it gave Talley’s the opportunity to respond. That’s surely right. There must be lots of room there for plaintiffs to argue that TVNZ could have done that better or differently.
I won’t go into all the statutory factors the judge considered. Suffice to say, they seemed to lead the judge to ask just the right questions – What are the issues in the case? How relevant is the identity of the whistleblowers to resolving those issues? Would the whistleblowers suffer harm if their identities were revealed? (On that one: yes, said the judge, and not just because Talley’s might retaliate against them. They might also suffer socially for being revealed as narks!) How important is the information provided by the sources? Are other sources likely to be deterred from coming forward with important information in future if they are revealed? I think this is a credit to the designers of our source protection law. Take a bow, Law Commission!
The judges themselves have fleshed the law out in sensible ways. This decision, and that of Assoc. Judge Sussock in Christian v NZME in 2020 (which also upheld source protection after a thoughtful analysis), show that we’ve got a pretty robust and effective source protection regime that seems well adapted to getting the balance right.
Topics: General | Comments Off on Talley’s source of contention