By Thomas Rose, Law Editor

The value and credibility of modern journalism rests primarily on the belief that it exists to serve the public good. There is perhaps no greater demonstration of that principle than a reporter who is willing to suffer the consequences of not revealing a source who provides information the public should know about.

By Thomas Rose, Law Editor

The value and credibility of modern journalism rests primarily on the belief that it exists to serve the public good. There is perhaps no greater demonstration of that principle than a reporter who is willing to suffer the consequences of not revealing a source who provides information the public should know about.

In the coming months, the courts will be asked to decide the fate of two reporters: one who steadfastly refuses to divulge the identity of his source even if it means jail; the other who voluntarily gave up his source in the face of a multi-million-dollar defamation suit. Both of these cases serve as good object lessons for reporters and their relationships with sources.

Obama vs. press freedom

New York Times reporter James Risen has been relentlessly pursued by two U.S. presidents since 2006 when he revealed details of a secret CIA plan to sabotage Iran’s nuclear program. George W. Bush initiated legal proceedings to compel Risen to identify his source, but Risen refused. In 2009, when the Bush subpoena was set to expire, incoming President Barack Obama shocked many journalists when he had the summons renewed.

Two years later, former CIA officer Jeffrey Sterling was charged with leaking confidential information about efforts to undermine Iran’s nuclear program to a reporter. Obama is now pressuring Risen to testify against Sterling and to name him as his main source. Again, Risen has refused to comply.

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In the U.S., freedom of speech is considered a fundamental right of reporters. It is protected under the Constitution and it is backed up by a host of so-called shield laws that say a reporter should not be forced to disclose the source of confidential information deemed in the public interest.

Obama is on record stating that journalists should never be arrested for doing their job and covering a “story that needs to be told." He has even introduced legislation to enact a national shield law. Risen, who could be behind bars within weeks, calls Obama’s statements "hypocritical." Noting the rise in subpoenas that federal courts have issued compelling journalists to reveal their sources, the Pulitzer Prize-winning reporter said Obama is "the greatest threat to press freedom in a generation."  

Kent vs. Martin, et al.

In January, jury selection will begin in an $8-million conspiracy and defamation case involving a former candidate in Alberta’s 2008 provincial election, a disgraced lawyer and a veteran Canadian journalist who had granted his source anonymity but later voluntarily withdrew it.

At the heart of the dispute between former Conservative candidate Arthur Kent, lawyer Kristine Robidoux and then Calgary Herald columnist Don Martin is privileged information given by Robidoux to Martin. At the time, Robidoux was legal counsel on Kent’s campaign and served as his Official Agent. Under the Election Act, an Official Agent is responsible for administering the candidate’s financial transactions throughout the campaign.

Kent has argued the information provided by Robidoux, which was mostly about campaign finances and used in Martin’s article "Alberta’s ‘Scud Stud’ a ‘Dud’ on Campaign Trail," was false, prejudicial and defamatory and effectively killed his chances of winning a seat in the provincial legislature.

Kent did not learn of Robidoux’s complicity with Martin until 2009 when during a pre-trial hearing, Martin (who nows works for CTV) voluntarily revealed her identity. As Justice Miller wrote in his decision, “Martin freely chose not to protect his source,” a move Miller described as "surprising." Keep in mind that unlike Risen, no legal or political pressure had been placed on Martin to reveal his sources.

Should protection be conditional?

So, two cases involving journalists and their protected sources. In the first instance, Risen said he would rather be imprisoned than undermine the promise he made to protect his source. In the second case, Martin willingly and eagerly gave up his source. Is one approach more correct than the other? Does one better serve the public interest and the credibility of journalism than the other?

In Canada, journalists have frequently lobbied for the enactment of shield laws. As yet however, no provincial, territorial or federal government has taken up the challenge. While the courts have often deferred to journalists attempting to do their jobs while relying on anonymous sources, the issue is generally considered on a case-by-case basis. This approach has led to inconsistent case law and confusion for journalists.

The courts’ inconsistency on the question of anonymous sources coupled with the absence of shield laws raises the question of whether a journalist should ever grant source anonymity.

In recent years, some newsrooms have begun backing away from the historic notion of absolute protection. The approach being taken is that should the information provided by the source result in litigation, journalists can continue to protect sources but only during the pre-trial phase of a case. If the case goes to trial or if a journalist is threatened with imprisonment, then all bets are off and the identity of a source can be revealed. Ultimately however, the decision is still a personal one.

If this is an approach your newsroom takes, then you have an obligation to ensure that your source is made aware of the conditions before anonymity is granted. For more information on journalists and their sources, check out these links and watch this space for future articles on the two cases. 

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