PROTECTION OF SOURCES AND SHIELD LAWS

A Report of the Ethics Advisory Committee of The Canadian Association of Journalists January 17, 2010 The Boards referral: How far should reporters go to protect their sources and are there any cases in which it is acceptable or morally advisable to reveal a source? For example, thinking of the Maher Arar case and possibly the Charkaoui case that the Montreal Gazette is involved in, if CSIS or the RCMP or some government agency has leaked erroneous information to discredit someone, is a reporters obligation or promise to keep a source confidential rendered void? This question, along with a private members bill on source protection drafted by Bloc MP Serge Menard, consumed the board last year and sparked some extremely interesting debates. We want advice on shield laws, whether blanket protection is advisable or whether there are some occasions where a reporter ought to reveal a source. Essentially, this boils down to three questions: 1.How far should reporters go to protect their sources? 2.Are there any cases in which it is acceptable or morally advisable to reveal a source? 3.How should these principles be applied in any shield law?

1. How far should reporters go to protect their sources?

The first question is adequately answered in the existing CAJ Code of Ethics. (See appendix). It states that confidential or anonymous sources should only be used as a last resort. Any arrangement about how far a journalist is willing to go to protect the sources identity should be clearly spelled out.

2. Are there any cases in which it is acceptable or morally advisable to reveal a source?
In certain rare circumstances, yes. When journalists use confidential sources, their contract and their obligation is, as always, first and foremost to the public, not to the source. Revealing a source would be justified, for example, if a government source or agency leaked erroneous information but only if they knew it to be wrong, not if they too were fooled or misled. Governments, police or other groups often leak information with the deliberate attempt to spin the news. If they have lied to you to get their version of the

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story out, they deserve to be exposed. That is why it is all the more important to check your sources and their motives. RECOMMENDATION: If a source knowingly lies or hides an important part of the truth about a major issue or fact in the story, your obligation is to the truth, not the source. He or she has broken his contract with you and you can break your promise of confidentiality to the source. Reveal the minimum: In some cases, a source may release you of your obligation to keep their identity confidential. Or he or she may have broken the deal by lying. Even then, you should reveal only the minimum the name only, for example. Not necessarily the details of how and when you met, what documents were handed over, etc. In one case involving a member of the ethics committee, military police were investigating an army source who was quoted anonymously in a book about criminal gangs. The source had subsequently been beaten up by gangs and investigators were checking into whether the published interview had anything to do with his beating. The source was cooperating with the investigation and authorized the journalist to reveal his name. Even in those circumstances, the journalist declined to discuss what, if any documents the sources passed on or any other details of their encounter. This is necessary to protect all your other sources and your professional integrity. If people found out journalists were disclosing not just names of our sources even with their permission -- but other details of your information-gathering process, your confidential sources would dry up and your investigations would be impeded. Difficult questions: How far should media companies and journalists go to protect sources? Here are some questions to consider: -Is it ethical to destroy a document that might reveal a source? -Some media outlets insist that at least one senior management or editor know the full identity of a reporters source (to prevent fraud and other errors). But some journalists feel in a era where management and bosses change frequently, that could be dangerous. -Some media companies allow reporters to keep safety deposit boxes off-site that only they have access to. Is that necessary or going too far?

3. How should these principles be applied in any shield law?

The CAJ board is either split or uncertain as to whether to support federal shield laws to protect confidential sources of journalists, and has asked the ethics committee for advice. The question boils down to: Under what circumstances, if any, is it ethical for a journalist when ordered to do so by a court to break a promise to keep a source confidential?

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Lets look at the state of Canadas laws, some international examples (Belgium,the US and Brazil) and what we can recommend to the board. Canadas laws How we respond to each of these issues will depend to some extent on existing laws in Canada relating to protection of sources. There are no federal shield laws, and the common law, for the first time in more than twenty years, is now before the Supreme Court of Canada in the National Post v. Canada case. The case was argued in the spring, and a decision could come at any time during the next few months. In the Post case, the lower court judge placed great weight on the importance of freedom of the press. She emphasized the importance of protecting confidential sources to ensure that stories of public interest continue to be brought to light. The judge concluded that the documents in question would only nominally advance the police investigation that was going on, but that disclosure of them would damage freedom of expression. She ruled that the documents did not have to be turned over by the National Post. The Ontario Court of Appeal overturned this decision and ordered the documents produced. The Court of Appeal recognized that the gathering and dissemination of news and information without undue state interference is an integral component of the s. 2(b) right to freedom of the press. But the court ruled that this does not guarantee that journalists have an automatic right to protect the confidentiality of their sources. What is required is a balancing of the interests of the media and the interests of the state, or society. Subject to what happens in the Supreme Court of Canada, the law can be stated: confidential sources must be disclosed where, in weighing the various interests of the media, including recognition of the importance that confidential sources play in the proper dissemination of information, and the state, including the administration of justice, the balance tips in favour of the state. How this balance tips in each case will of course depend on the facts and the prejudices of the court hearing the case. Menards Bill: It is impossible to predict what the SCC will do with this. And until the SCC makes its decision, my view is that it would be extremely difficult to advise the CAJ on shield laws, or to answer the question set out at the top of this memo. Bill C-426, the private members bill designed to protect journalists sources that was given first reading in April, 2007, and is now dead, basically said that no journalist shall be required to disclose a confidential source, unless disclosure is in the public interest. Such a bill would not really change the existing law, as articulated by the Ontario Court of Appeal in the National Post case. The bill, like the common law, calls for a balancing of the interests of the media and those of the state.

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Both the bill, and the common law, recognize that there are circumstances where state interests require a journalist to break his promise and divulge a source. Belgium law: In Belgium, a law adopted in 2005 and considered a very good one by Reporters Without Borders, gives extensive protection to journalists. It allows them to shield not only the identity of their sources, but also any documents, video or other information that could lead to the revelation of the sources identity. This law is not a free pass for journalists. The law lays out 4 strict criteria that must be met to oblige a journalist to identify a source: 1. A judges order 2. The information demanded must be needed to prevent the commission of a major crime that may be dangerous for the physical integrity of an individual or individuals 3. The information demanded must be crucial for the prevention of such crimes 4. There must no other way to obtain that information United States: About 40 states in the U.S. have shield laws and for the most part these laws recognize that a journalist must reveal a source in certain circumstances. At the federal level, the US Congress is currently studying a media shield bill that would require prosecutors to exhaust other methods for finding the source of the information before subpoenaing a reporter, and would balance investigators interests with the public interest in gathering news and maintaining the free flow of information. It could protect reporters from being imprisoned if they refuse to disclose confidential sources who leak material about national security. The House has already approved a version of the shield bill, but it has stalled in the Senate.The Obama administration opposes the legislation and is seeking amendments so that protection of journalists and their sources would not apply to leaks of a matter deemed to cause significant harm to national security. Moreover, judges would be instructed to be deferential to executive branch assertions about whether a leak caused or was likely to cause such harm, according to officials familiar with the proposal. (Source: New York Times) Brazil: The Brazilian Constitution protects the confidentiality of the source, when necessary to professional activity, which includes doctors and priests, for example. In relation to journalists, the Brazilian Supreme Court has interpreted that as an absolute protection, giving journalists a right to non-disclosure of sources and information against any sort of sanctions, whether administrative, criminal or civil, including court remedies. In practice, a judge cannot order a journalist to provide a name or a document used in a news piece. Of note, it is only the journalists right to silence that is absolute, not whats eventually published, so journalists and publishers are still liable for the content they publish.

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The absolute protection enjoyed in Brazil is probably too simplistic and politically unattainable in Canada, but it stands as an example. RECOMMENDATION: No shield law will ever give absolute protection to sources. The laws will always try to strike some kind of balance or trade-off. It is pointless to ask for a law that gives 100% unbreakable protection of sources (even lawyers, doctors or priests dont have that kind of confidentiality protection.) So either the CAJ opposes any kind of shield law if it thinks no law will ever go far enough, or it decides what trade-offs or balances are acceptable.

APPENDIX:
EXCERPTED FROM CAJS ETHIC GUIDELINES Use of confidential and anonymous sources A. When is it appropriate to use them: We should strive to fully identify the sources in our stories for credibility and accountability. When sources are secret, the reader or audience has less information on which to judge the reliability of the sources comments. Also, anonymity might encourage the source to make irresponsible statements. However, confidential sources can be a vital tool in the free flow of information. There can be clear and pressing reasons to protect anonymity. In print media, we may conceal the identity of interview subjects by changing their names or by not naming the source. In broadcast, we may protect identities through digital or other technical methods, such as concealing an interviewees face or distorting their voice. We should use such methods only when the participation of the subject puts them at risk of harm or personal hardship (i.e., a whistleblower who might lose his/her job, or a mole within organized crime.) B. How they should be identified: We will explain the need for anonymity to our readers and audiences. Confidential sources should be identified as accurately as possible by affiliation or status. (For example, a senior military source must be both senior and in the military.) We will identify a source from a critical or opposing side of a controversy as such. Any vested interest or potential bias on the part of a source must be revealed.

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C. How they should be checked: Use of anonymous sources requires the prior approval of at least one senior editorial person (or manager) who knows the full identity of the source. This ensures editorial control, verification and honesty. The disclosure of sources among journalists within a news organization is not the same as the public disclosure of sources. We must know the full identity of the anonymous source (e.g., full name, phone number, method of contact, history and background). Anonymous does not mean we know little about the person. It means we know everything, and are offering an agreedupon level of protection. More than one source should be used to verify a story or fact. If only one source is available, we must say so. We will not allow anonymous sources to take cheap shots at individuals or organizations. We will independently corroborate facts, if we get them from a source we do not name. D. How they should be protected: Promising sources that we will keep their identities confidential is not enough. We must spell out, precisely, two things:

what the level of confidentiality is how far you are willing to go to protect the source

There are three levels of confidentiality: Not for attribution: We may quote statements directly but the source may not be named, although a general description of his or her position may be given (a government official, or a party insider). In TV and radio, the identity may be shielded by changing the voice or appearance. On background: We may use the thrust of statements and generally describe the source, but we may not use direct quotes. Off the record: We may not report the information, which can be used solely to help our own understanding or perspective. There is not much point in knowing something if it can't be reported, so this undertaking should be used sparingly, if at all. We will make it clear from the start how far we are willing to go in protecting a source. We may be ordered by a court or judicial inquiry to divulge confidential sources upon threat of jail. If you are willing to go to jail to protect a source, say so. Otherwise, spell out the conditions. To protect your credibility or your companys finances, you may tell the source you will have to reveal their identity in order to win a damaging lawsuit.

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Make it clear that if a source lies or misleads you, all agreements are off. We should not make any commitments to anonymous sources without consultation with senior management. Journalists should be wary about entering into arrangements that they cannot fulfill. Sometimes sources request additional protection. For example, they may ask for legal assistance or protection if they are revealed or endangered. If you and your employer agree this is reasonable, spell out the terms. When promising confidentiality we should bear in mind that Canadian journalists are not protected by shield laws, as in the United States. However, an Ontario Superior Court judge has recognized that forcing journalists to break promises of confidentiality would seriously harm the medias constitutional right to gather and disseminate information.