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Source of contention

By Steven | February 1, 2011

When – if ever – should journalists be forced to disclose their confidential sources?

It’s been a hot issue lately. The Crown applied to court for an order requiring TV3 to provide identifying information of the Waiouru Army Medals thief after John Campbell’s anonymised TV interview with him. The Serious Fraud Office compelled the National Business Review to turn over notes and tapes made during its scoop on South Canterbury Finance. The government had to fend off accusations that its new Search and Surveillance Bill did not properly protect journalists’ confidential sources.

NBR was outraged at the Serious Fraud Office’s demand, describing its powers as “draconian”. The paper complied under protest, saying the materials didn’t include anything that wasn’t already published. But it was clearly worried that the SFO might come back for more. “Our concern is that we may be a target of more fishing trips by these investigators,” NBR’s publisher told NBR.

NBR’s coverage turned the heat on the SFO, no doubt to disincentivise such fishing trips with an implicit reminder of the sterling advice attributed to Mark Twain: “Never pick a fight with a man who buys ink by the barrel.”

Perhaps the SFO turned up the blowtorch a notch too high: Nevil Gibson’s suggestion that the SFO isn’t subject to judicial review or the Bill of Rights Act in the exercise of its powers is wrong on both counts. But his description of the powers as “draconian” seems on target. The SFO Act contains no protection for confidential media sources equivalent to that in the Evidence Act. The Evidence Act doesn’t contain an absolute rule that journalists can never be forced to reveal their sources, but it does mean that journalists can insist that the decision is made by a judge after weighing a range of sensible statutory factors. There doesn’t seem to be any good reason not to carry this over into the SFO legislation.

The Evidence Act provisions are fairly new, and got their first run in the Campbell case (which doesn’t seem to be available online). TV3 argued that if they were ordered to turn over information identifying their interviewee, then their sources would “dry up”. The Crown asked me to give evidence about whether that was true. What hard evidence is there of this “chilling effect” on confidential sources?

My evidence is here (skip the first 10 paras or so describing my qualifications). The cases, reports and articles I’ve drawn on are listed at the end.

I found the exercise fascinating. It quickly became obvious there is no hard evidence. If sources don’t come forward, we don’t find out, and we can’t know why they didn’t. Most of what passes for evidence is from journalists, and it’s difficult to escape the impression that it’s a bit self-serving.

But there’s much more to the question than that. Pretty much everyone seems to agree that there must be some benefit to source confidentiality. Journalists use confidential sources all the time. Some ground-breaking stories relied on confidential sources, including (from the US alone) Watergate, the My Lai massacre, the Pentagon Papers, the Iran-Contra scandal, Abu Ghraib, and the federal government’s involvement in unauthorised wire-tapping and torture. Most countries provide some protection for journalists’ sources.

But here’s the thing. Almost nowhere is the rule absolute. So those sources have come forward for those stories despite the danger that the journalist might be compelled to identify them in court.

Ah, but noble journalists will go to jail sooner than reveal a source, right? Well, some will, and have. Others haven’t. US research (a bit old, but still valid, I bet) says that journalists almost never discuss this possibility with their confidential sources. I gather that Phil Kitchen and Nicky Hager do. But how many other journalists bother to point out that the law might override their promises of confidentiality and talk about what they might do then? To be fair, this is mostly because most confidential conversations aren’t very important. Helpful to the business of news gathering, sure, but really earth-shattering revelations are very rare.

There is a proud journalistic tradition of protecting sources to the last. But it’s a bit mythical, I think. Scratch the surface and journalists are sometimes prepared to decide for themselves when it’s right to burn a source. (And that’s not counting the ones who negligently or in the course of gossip, let confidential information slip). For example, many journalists would burn a source to save a life. Many would burn a source to prevent an innocent person from being convicted of a crime. Many would feel no obligation to a source who lied to them. Some even say they would do so if they thought it was “in the public interest”. Some in New Zealand seem even to have done it because it suited their journalistic purposes.

Journalists want the right to take this decision for themselves, and not have it foisted on them by a court. But it’s not self-evident that their decision-making process is better than the one set out in the Evidence Act. And it’s not clear why the media’s occasional decision to burn sources themselves doesn’t chill sources as much, or more, than the Evidence Act.

It all gets a bit messy, doesn’t it?

The reason it’s not messier still is that, in fact, police and plaintiffs around the world only rarely seek access to such the identity of confidential media sources. Partly, that’s because the media publish most of the useful material they gather, the names of their sources are rarely vital, and the police and plaintiffs know they’ll get publicly excoriated if they do.

As for the sources themselves, they probably have a range of reasons for coming forward, and (if they think about it at all) probably usually think the chance of their identities coming out is low. Many won’t have done anything wrong. For some, the overriding factor is getting the information out. If push comes to shove, some sources are prepared to agree to be named.

But there are others – possibly breaking the law or jeopardising their jobs by coming forward – for whom absolute confidentiality is crucial. My best guess is that they are unlikely to be chilled by the odd court case ordering a source to be disclosed, especially if the facts seem far removed from their situation. Because in fact, that pretty much describes the status quo. On the other hand, if there was a string of high-profile court orders against journalists forcing them to disclose their sources – and the journalists did so rather than going to jail for them – then some of those types of sources may well get chilled, to the detriment of important stories in the public interest. (Alternatively, some might simply slip an unmarked envelope under a journalist’s door – though this would make stories harder to check out, which must count as a significant detriment when source-protection is weakened).

At the end of the day, this conclusion seems a distance from the righteous wrath that routinely spills from the media about the dire consequences attendant upon any attempt to get them to breach a confidence. Their claims are exaggerated, I think. But that’s not to say that source protection is not important.

PS: The Campbell case was resolved when TV3 agreed to give evidence of details of their meeting with the thief which provided a basis for inferring the identity of the thief (the police had some CCTV footage from the hotel where it occurred anyway, I gather, and it probably related to that). Was that betraying their source? The judge would probably have ordered disclosure without it.

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