Off the record: Confidential sources and the courts

By Melissa Wilson, Associate Editor, Precedent Magazine.

An ethical dilemma: Is it okay to steal a loaf of bread to feed your starving family? Ethicists and scholars have been debating this for centuries, and have yet to come up with a satisfactory answer. “History is full of people who broke the law and were judged right in the end,” said Ivor Shapiro, ethics professor at Ryerson University’s journalism school (and J-Source Ethics editor) at a recent panel discussion about the laws (or lack thereof) surrounding journalist-source confidentiality.

Toronto Star investigative reporter Robert Cribb, Torstar Chair John Honderich and Osgoode Hall Law School professor Jamie Cameron joined Shapiro in the March 4 discussion, hosted by Ryerson’s Law Centre and School of Journalism and the Ontario Press Council. Wendy Cukier, a professor at Ryerson’s Ted Rogers School of Management, moderated the event.

The event came less than a year after two monumental decisions were made regarding source confidentiality in Canada (regarding the National Post in May and The Globe and Mail in October) that saw the Supreme Court of Canada reject an absolute privilege for journalist-source relationships, but recognize the right of the media to protect confidential sources as a matter of public interest. (Decisions about source protection will fall to the courts to be made on a case-by-case basis.)

Though this recognition is seen by many to be a giant step forward in the democratization of journalism, the decision has really generated more questions than answers, and left both the media and the legal communities alike scratching their heads with a series of what-ifs:

    * What is the nature of a confidentiality agreement?
    * What does “I will protect you” mean? Does is mean the journalist will keep the source’s name out of the papers, or go to jail rather than reveal a source?
    * What if the information the source provides turns out to be false?
    * What if the source lies?
    * Should privilege be set up against a criminal offence, as with the National Post case? If so, to what degree?
    * Does shield law create a situation for people to use anonymity for personal or political advantage?
    * Should privilege be extended unconditionally to all journalists? If so, what is the definition of a journalist?

See how it gets a little sticky?

One thing that came up again and again at the panel discussion was the question of when the relationship between a source and journalist should be revealed, and for what reasons, and who should get to decide. (See sidebar below)

“As it stands, the journalist seeking protection has the burden to explain why the relationship needs to be protected. I think that’s wrong,” says Cameron, who went on to say that the burden should be on the other party to explain why the confidentiality agreement should be broken.

For that comment, Cribb quipped that Cameron “might be my best friend in the world right now. We rarely get that kind of support from the legal community.”

Generally, it’s the reporter on the stand, being threatened with jail time if he or she doesn’t reveal a source. With it up to the courts to decide who gets protection and who doesn’t, journalists do a lot of source vetting before entering into a confidentiality agreement. But maybe that’s the way it should be?

According to Honderich, most cases see sources giving good information, but it’s up to the journalist and the paper to make sure the source has first-hand knowledge of the matter, and hasn’t “gone rogue.”

“There’s lots of due diligence before entering into this kind of relationship. No one wants to be on the stand protecting a source who’s not legitimate,” says Cribb. “I don’t think we’ll ever get unqualified privilege, and I don’t think we should. But a restricted privilege with an onus flip is where we should be heading.”

*this story was originally published by Precedent Magazine and republished with their permission.

The journalist-source priviledge: sacred right or reporter crutch?
By Alexandra Bosanac

Toronto Star investigative reporter Rob Cribb and the head of TorStar, John Honderich, subtly disagreed about the importance of sources at the March 4 discussion. 

Honderich maintained that occasionally, journalists are too quick to offer protection without carefully considering the ramifications. 

“Confidential sources are the essential lubricant to good investigative reporting. However, abuse of confidentiality is seen as a crutch for the press and is the reason for cynicism by the public,” Honderich said. 

But Cribb said that in this 24/7 news cycle and at a time when governments drag their feet on providing information, it’s hard not to rely on unnamed sources. 

He said when reporters run into a source that refuses to be named, they can offer protection if the source has first-hand information, isn’t divulging it for political gain and, the facts check out. 

Cribb said he always asks his sources if they’re telling the truth and assures them that if they lie, he will find out and there will be no protection. He tells them, “I’m not just talking to you.”  

However, another panelist, Ivor Shapiro, a professor of media ethics at Ryerson’s journalism school, sees a more complicated relationship. “The promise of confidentiality is sacred. It doesn’t matter who your source is, a promise is a promise and you keep it,” Shapiro said. 

Cribb described how negotiations to protect sources go beyond reporters, that possible deals must be discussed with a senior manager.   

Honderich reminded the audience that it’s a newspaper’s right to refuse to protect journalists and their sources if they are found in contempt of court. Honderich said that journalists must consider the fact that the company has to pay the bills if they wind up in court.