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Truth and the Unnamed Source – Damian Carney

When journalists find themselves facing court action which seeks to force them to reveal their unnamed sources, they tend to claim a ‘reporter’s privilege.’  This is based on the argument that it is a universal and primary tenet of journalistic codes of ethics which the individual journalist (and profession) will not yield in any circumstances. Such a position is thrown into doubt when the journalist is seeking to protect the supplier of false information. In this post, I will show how the conflict between the obligation to truth and protection of unnamed sources are resolved in both the ethical and legal spheres.

Truth and protection of journalist sources in journalist codes of ethics

Reviewing media codes of practice from around the world reveals that there is only one universal principle: an obligation to truth or accuracy. Its importance is illustrated by the fact it often the very first thing mentioned in a particular code, as it is in Clause 1(i) of the PCC’s Editor’s Code which reads “[t]he Press must take care not to publish inaccurate, misleading or distorted information, including pictures”; whilst it is the second principle in the NUJ’s Code of Conduct which requires that members must, “[strive] to ensure that information disseminated is honestly conveyed, accurate and fair.” Both these examples do not guarantee the information which is presented to the public is objectively true, but reveals that the journalists will only publish what satisfies a ‘journalistic truth’ (i.e. one which has been subjected to as thorough a verification of its veracity as is possible).

In point of contrast a review of codes of ethics around the world reveal many which are silent on the protection of unnamed sources (including those of many news organs, and the Austrian Press Council’s Code of Ethics for the Austrian Press; Canadian Daily Newspaper Association’s Statement of Principles; and others which require reporters to reveal their source to prevent harm to others (Principle 3 of the Code of Ethics of the Albanian Media) or which releases the reporter from any obligation when the information turns out to be untrue (See Clause 6 of Portugal’s Sindicato Nacional dos Jornalistas code of ethics reads: “Identification of one’s sources is an essential for a journalist. He/she must not reveal, not even in court, his/her confidential sources except when he/she has been abused by false information.”

No such qualifier exists in either clause 14 of the PCC Editor’s Code (“Journalists have a moral obligation to protect confidential sources of information”) nor clause 7 of the NUJ’s Code of Conduct (which requires members to “Protect the identity of sources who supply information in confidence and material gathered in the course of her/his work.”)

Conflicts between source protection and the truth in the ethical sphere

The purpose of ethical codes is to require journalists to weigh the different competing ethical values at stake and reach a reasoned decision in the particular circumstances. However, the absolute language of the domestic codes enables journalists to treat the protection of confidential sources clause in a “legalistic Kantian” way. This lead Aaron Quinn (‘Respecting Sources’ Confidentiality: Critical but Not Absolute’, chapter 18 in Christopher Meyers (ed) Journalism Ethics: A Philosophical Approach (Oxford University Press 2010) 278) to argue

“…if journalists keep agreements with sources who deceive them and/or who do unjustified harm to others by gaining anonymous impunity, then the public interest is not well served and the agreement should be broken.”

The reference to public interest is very important because if codes are intended to benefit the public then the outcome of clashes between principles in the codes must take this into account.

Edward Wasserman, Professor of Journalism Ethics at the University of Miami, analysis of the conflict between promise-keeping and other principles serving the public interest shows how weak the absolute position is (‘A Critique of Source Confidentiality’ (2005) 19 Notre Dame Journal of Law, Ethics & Public Policy 553). He points out that it is difficult for journalists to maintain the view that promises of confidentiality must be maintained in all circumstances when the source himself has often breached such an obligation. To Wasserman truth-telling, and giving the public information they would not ordinarily have, are the core elements of journalism. The obligation of confidentiality to the source is only justified if it achieves these goals. Protecting sources merely because it enables the journalist to maintain his reputation for trust is “not an ethical consideration, but an operational calculation,” and Wasserman suggests that arguments to the contrary ignores the more important relationship which is at stake when a journalist protects his secret source – namely the relationship between journalist and public. An agreement to protect a source’s identity clashes with the values of accountability and verification which are needed to enable the public to evaluate the truthfulness of what appears in the relevant article. If the source’s identity is to be protected then the journalist must be able to justify the protection on the basis of arguments which the general public would find acceptable or beneficial.

Typically journalists employ a rule-utilitarian argument that the overall public benefit of source protection of providing the public with more information of public interest than if the rule did not exist, outweighs the harm to the public interest caused by the occasional unnamed source abusing the related privilege. Critics of the absolutist position argue that confidential sources are more frequently manipulative than altruistic; that promises of anonymity are given too easily; it is implied that it is given to sources who would either go on the record if pushed, or who are providing information not of sufficient public interest to justify anonymity); or that self-interested reasons (e.g. keeping a source exclusive) explain the promise of anonymity. There is, therefore, a danger that in looking at the overall benefit of the rule to the free flow of information, it ignores potential abuse and dangers in the individual case. Consequently, the best approach to such issues is an act utilitarian based approach which weighs up the competing public interests in truth and protection of the particular source.

Truth versus Protection of Journalist Sources: the Canadian Supreme Court

The Canadian Supreme Court case of R v. National Post [2010] 1 S.C.R. 477 considered the issue of the legal obligations of a journalist when he is supplied with untrue information. In this case a reporter for the Post had been investigating alleged improper/ unlawful activities involving the then incumbent Canadian Prime Minister, Jean Chrétien and loans from a government owned bank to a golf course hotel in which Chrétien had an interest. In November 2000, the reporter was able to prove, through information supplied by X under a “blanket, unconditional promise of confidentiality” that despite strong initial denials Chrétien had put pressure on a director of the bank to loan the money via phone calls. In April 2001, the reporter received a brown paper envelope with documents which purported to show that a company owned by the Chrétien family was owed money by the hotel company at the time the loan was sought. After contacting the bank and Prime Minister, the reporter took the view the documents had been tampered with and did not pursue the story until other news organs wrote on the matter after having been information by opposition politicians who had also been supplied with the information by apparently the same source. The police said they were launching an investigation into who had supplied the documents. X contacted the reporter and revealed he was the source, but had been supplied with the information by a third party. The reporter promised X his undertaking of confidentiality would remain so long as McIntosh was convinced that X had not deliberately misled him. However, if “irrefutable evidence to the contrary” came to reporter’s attention the agreement would come to an end.

The reporter remained convinced of the bones fides of X throughout court proceedings in which the documents he was supplied with were demanded by the police. After initial success in resisting the subpoena and disclosure orders, the Court of Appeals of Ontario and Supreme Court of Canada ruled that the documents should be handed over to the police.

The leading judgment in the Supreme Court was given by Binnie J who adopted the traditional Wigmore test on a case by case basis. This is a four part test. The first element requires an establishment that the information was given in confidence and the second element required that confidence was essential to the relationship. These two parts were clearly satisfied as the information would not have been revealed had it not been for the initial promise of confidentiality that X had received from the reporter. The third element required that the source-journalist relationship should be “sedulously fostered in the public good,” and Binnie J recognised that it was in the public interest to know about alleged misconduct of a sitting Prime Minister.

However, it was the fourth element of the test where most of Binnie J’s attention is focused and which ultimately leads him to conclude that the source is not protected. This element requires that the interest in protecting communications from disclosure outweigh the interest in getting at the truth and disposing correctly of the litigation. Binnie J adopts an act utilitarian calculus based upon what is best in the public interest and assessed the conflicting interests at stake in the immediate case before him. Consequently the interests of source and journalist are relegated, indeed disregarded in the calculus (“neither the journalist nor the secret source ‘owns’ the privilege”). There is no consideration as to harm to the source as justifying protection of his identity, beyond recognising where the journalist breaches the agreement the source may have a civil remedy available; whilst it was for the courts not the journalist to ultimately decide that a journalist should reveal the identity if it was in the public interest to do so.

The reason for this conclusion seems to be that the purpose of the privilege is to “facilitate the freedom of expression of the media and their readers and listeners.” Binnie J referring to the instrumental goal of the privilege concluded that:

“The alleged forgery is distinct from whistleblowing. In terms of getting out the truth, the ‘leak’ of a forged document undermines rather than advances achievement of the purpose of the privilege claimed by the media in the public interest.”

Thus Binnie J’s position was that the as the document was false it (and hence X) was unprotected by the privilege. It did not matter that the reporter believed that X was “sincere in denying his involvement” in the forgery of the document, saying that “the police need not accept X’s anonymous, uncorroborated and self-exculpatory statements as a reason to terminate their investigation.

The Interbrew litigation: Financial Times v United Kingdom (Application No. 821/03) (2009)

Closer to home the issue of the legal obligations of a journalist when he is supplied with untrue information by a source was explored by the European Court of Human Rights in the Interbrew litigation . The case arose following several news organs receiving information in December 2001 that Interbrew was about to launch an imminent takeover bid for South African Breweries. When contacted by journalists Interbrew claimed the documents which had been sent anonymously to these news organs were doctored internal presentations which were intended to manipulate the market, and the company had to issue press statements to counter these claims. In domestic litigation the news organs were required to handover the documents, but they refused claiming a privilege. In Strasbourg the domestic decision was overturned on the ground that the domestic courts were too willing to accept the affidavits of Interbrew as to the documents being fabricated or doctored, and the adequacy of internal investigations into the source of the leak. In simple terms the court did not accept that it was established that these documents were false or doctored.

However, the court did give some indications of what it would do if it was established that the documents were indeed fake(d). The court stressed the importance of the press providing “accurate and reliable information” ([62] and [67]) in order to contribute to public debate. It would consider the steps taken by the journalist to verify information from anonymous sources, but accepted that this would not be decisive given the difficulties of verifying this type of information ([67]). However, it does suggest a greater unwillingness to support the disclosure of the unnamed source, or documents which could identify him if there was no evidence that attempts at verification had taken place.

The court also said that on occasions the “source’s harmful purpose would in itself constitute a relevant and sufficient reason to make a disclosure order” ([66]) indicating that had there been sufficient evidence that the leak in this case intended to cause a false market then it would have supported disclosure. This logically follows from the importance the Court gave to the need for the Press to publish accurate information, but the Court held that domestic courts should be “slow to assume” “in the absence of compelling evidence” that “a source was clearly acting in bad faith with a harmful purpose and disclosed intentionally falsified information.”([63]) Thus whilst the Court accepted that the protection of confidential sources can be overridden where false information is provided it sets a high threshold which clearly Interbrew failed to satisfy in this case. By doing so, the Court indicates the importance of the basic tenet that anonymous sources must be protected, but indicates on rare occasions that it will be sacrificed to ensure that the public are not misled, and insisted that this would not undermine the general principle of anonymity.

Conclusion

Whilst there are clear differences between the Supreme Court of Canada’s and European Court of Human Rights’ approaches to what should be done when the information supplied by an anonymous source turns out to be incorrect, there are a number of shared similarities. Firstly, where the information is proven to be untrue, any obligation a journalist owes to his source ceases to be relevant. This is because the purpose of the privilege in the first place is to benefit the public (not the source or journalist). Secondly, both courts adopt a case by case approach to deciding whether an anonymous source should be protected, in doing so it cannot be claimed that the privilege itself justifies the protection of a false source, because in general the privilege encourages anonymous sources to provide true information which otherwise would not come into the public domain. Although journalists may claim that when they find out the information supplied by the anonymous source is untrue, they can correct it thus fulfilling their truth seeking role; if they refuse to disclose the name of such a source, or help in discovering this where the source is genuinely unknown, they are encouraging the malevolent to abuse the ‘privilege.’

The goal of the privilege is not undermined if it is qualified only to protect suppliers of true information. There is, as the National Post decision highlights, a more complicated issue where the source has unintentionally provided false information, either through the trickery of others or through a misunderstanding of information which he has obtained or events he has observed. However, if we see the obligation of the privilege is to obtain truthful information, and the shield must be pierced when the information supplied is false, then this must mean that the innocent conduit has to be revealed. This imposes an obligation therefore on the source to ensure that if he wants to protect his anonymity he must be sure that what he supplies is truthful.

Damian Carney is Principal Lecturer in Law at the University of Portsmouth.  This post is based on a paper presented at Media & Communications Section at the SLS Annual Conference held at Downing College, University of Cambridge, 7 September 2011.

1 Comment

  1. Matt J. Duffy

    Astute analysis.

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