§ 22.026.Publication of Privileged Information

A short anti-waiver rule, and without it the privilege would defeat itself.

Publication or dissemination by a news medium or communication service provider of information, documents, or items privileged under this subchapter is not a waiver of the journalist’s privilege.

The problem it solves is structural. Privileges are ordinarily waived by disclosure — telling someone what your lawyer advised is the classic way to lose legal professional privilege. But a journalist’s entire purpose is to publish, and a privilege lost by publication would protect only the story nobody ever ran.

What remains protected after publication is the material behind the story, and that is where the value lies: the identity of a confidential source, unpublished notes, drafts, recordings, and the parts of an interview that never appeared.

Publishing a quotation from an unnamed source does not open the door to the source’s identity, and running two minutes of an interview does not surrender the other fifty.

Note that the section covers a communication service provider as well as a news medium, tracking the definitions provision’s recognition that publication now happens through intermediaries.

The rule is confined to publication. It says nothing about other conduct that might waive the privilege — handing material to a third party for a purpose unconnected with publishing it is not addressed here.

The news media recordings provision that follows deals with the related question of outtakes and unpublished footage directly.