On the record: Is it really consent without talk of consequences?

By Esther Enkin

By Esther Enkin

We’ve all been there. You are doing a story on a touchy social issue—addiction, other mental health concerns, what it’s like to live on welfare, a look at quasi-legal behavior. Your editor says, “Get me someone who will tell their own story.” Or you are faced with a situation like the aftermath of the fire in Isle Verte, Que., or the disaster in Lac Megantic, Que., and you know you need to talk to the survivors. And we generally do it. And we should. It makes for a more compelling story when we are able to provide lived experiences and personal accounts of what it is really like to face whatever reality we are writing about. 

It is in the public interest to get these stories out there, and to have them read and remembered. But here’s the question we realized we almost never ask: What do we owe the people we include in the story? Is there any obligation to let them know what might happen as a result of being featured in a story in print or online or on television and radio? These days it is likely that whatever medium the reporter starts with, the report will end up online anyway. Is there a different duty of care if the people we are approaching are traumatized or vulnerable in some way?

As journalists, it is in our DNA to get the story and to publish what we know. So it will come as no surprise that when the Canadian Association of Journalists ethics committee proposed taking a look at the methods used to gain consent from sources, especially vulnerable or marginalized ones, there was great skepticism all around. 

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Fortunately, Meredith Levine, the chair of the sub-committee on informed consent, is a Western University journalism professor with a deep understanding of the concept  from a health-care perspective. And her master of journalism thesis was on consent in journalism. The other committee members joining us—Kathy English, public editor of the Toronto Star and Julian Sher, senior producer for CBC’s the fifth estate—are, like me, from the working end of journalism. The three of us began with very different views from Levine, to put it mildly, about the need to inform journalism subjects.

Levine says when she was doing the work on her master’s thesis, “I began reading deeply into the moral philosophy literature and applying the literature to journalism practice. It was only then that the penny dropped and I began interrogating my past practices. The process was uncomfortable, motivating and liberating.” She thinks that journalism could borrow from health care and have a much more rigorous standard of informed consent. Under Canadian law the only information a reporter must disclose to a subject or source in order to obtain legal consent to conduct an interview and publish its contents is the reporter’s name and that of their employer. 

The rest of the committee resisted the notion of set protocols as unnecessary and impractical. We talked. We debated whether there was any room for a more rigorous discussion of potential consequences when dealing with vulnerable sources. We argued about whether we could do so without undermining our duty to serve the public interest by providing it with important information. We talked and emailed for the better part of a year. In the end we chose to examine five key questions:

  1. Does current media law on consent offer enough protection to subjects and sources?
  2. How big a risk is there for bad things to happen to people because they are interviewed by journalists?
  3. When it comes to vulnerable people, should journalists expand their role beyond public information provider to be advocate or caretaker?
  4. How should we balance the principle of serving the public with the idea of minimizing the harm we impose particularly on vulnerable and marginalized subjects?
  5. What proposals can we offer for doing a better job of consent with vulnerable and marginalized subjects?

Spoiler alert: we didn’t come up with all the answers, or even find a way to come to consensus on how to address these questions. But we did reach unanimity on this: there in fact are ways to offer at least some improvement in our consent transactions with vulnerable subjects without undermining the public interest. We invite you to read our debate here, and add your voice to the conversation.



Esther Enkin is the ombudsman at the CBC and a member of the CAJ ethics committee.          



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