The recent debacle over the issuing of subpoenas calling for two eTV journalists to divulge their sources and confidential information relating to the broadcast of footage showing two ‘self-confessed criminals’ threatening to rob and murder during the 2010 World Cup, has highlighted the controversial point at which conflicting rights collide. Moreover, it has demonstrated the urgent need for clear legislation to clarify otherwise vague and untested common law principles and constitutional concepts. The interests of the effective administration of justice and maintenance of law and order compete with the right to freedom of expression.

At the core of this conflict lies the question whether the public interest in compelling the journalist to reveal his or her source or confidential information clearly outweighs the public interest in the free flow of information.  This balancing test is left to judicial discretion which is wholly insufficient when adjudicating upon a matter which could potentially have a catastrophic impact upon the foundations of our democracy.