Anonymous Sources and Freedom of the Press

In the recent Supreme Court of Canada decision R v. National Post, the court affirmed that journalists do not enjoy a blanket right to protect confidential or anonymous sources. A basic summary can be read here and the full decision can be found here. Like many cases, the matter at hand boiled down to the issue of striking a balance between competing public goods, namely freedom of the press and effective law enforcement. The dilemma is outlined in the decision as follows:

The public’s interest in being informed about matters that might only be revealed by secret sources…is not absolute. It must be balanced against other important public interests, including the investigation of crime. In some situations, the public’s interest in protecting a secret source from disclosure may be outweighed by other competing interests and a promise of confidentiality will not in such cases justify the suppression of evidence.

This predicament was very much present in this particular case, wherein National Post reporter Andrew Mackintosh received an envelope from a source who asked to remain anonymous. That envelope contained information potentially revealing a conflict of interest on the part of then Prime Minster Jean Chrétien, who allegedly secured a loan from the Business Development Bank of Canada for a hotel in his home riding. The hotel in question apparently owed money to the Prime Minister’s holding company. The RCMP subsequently applied for a warrant to search the offices of the Post on the grounds that the document may have been a forgery, hence the dilemma between the journalist’s right to maintain a confidential source and the ability of law enforcement officials to carry out criminal investigations.

In the final analysis, it was decided that concerns about the potential suppression of evidence in a major case which implicated the Prime Minister outweighed the concern of protecting a source, who did not necessarily face serious harm at having their identity revealed. The SCC distinguished a journalistic source from other instances wherein identity might be protected, stating,

…the identity of a police informant is shielded from the accused. A civil litigant has no right to know what the opposing party privately confided to his lawyer. Information pertaining to national security and Cabinet confidences may be withheld on the basis of what is called pubic interest immunity.

Mr. Mackintosh’s source certainly did not fall under any of these categories and is not in any danger of physical detriment or having a career destroyed as a whistle-blower might. Rather, the only thing that the source might be potentially escaping is accountability or the exposure of criminal activity. If this is not the case, the source would merely be adding to an investigation which gets to the truth of the information enclosed in the document. Indeed, the source maintained that they did not knowingly pass along a forged document. Nonetheless, Justice Binnie, writing the opinion of the court, affirms, “a source who uses anonymity to put information into the public domain maliciously may not in the end avoid a measure of accountability.”

The decision and reasoning on the part of the SCC in this case ought to be applauded given their understanding of the problematic nature of anonymous sources while still recognizing the vitality of a free press. Regarding the latter, it should be noted that the decision in question in know way impedes the right of any media outlet or individual to publish whatever content they desire nor does it forbid the use of anonymous sources in gathering information for journalistic purposes. Furthermore, Justice Binnie reiterates previous decisions which upheld the right to use confidential sources where necessary. Binnie writes,

In Lessard and New Brunswick, the Court accepted that freedom to publish the news necessarily involves a freedom to gather the news.  We should likewise recognize in this case the further step that an important element in the news gathering function (especially in the area of investigative journalism) is the ability of the media to make use of confidential sources.  The appellants and their expert witnesses make a convincing case that unless the media can offer anonymity in situations where sources would otherwise dry-up, freedom of expression in debate on matters of public interest would be badly compromised.  Important stories will be left untold, and the transparency and accountability of our public institutions will be lessened to the public detriment.

The right to use anonymous sources, however, has never been, nor should it ever be, constitutionally protected. In cases of whistle-blowers or in instances where a source risks substantial harm, there is a compelling case to be made for maintaining anonymity, and the SCC certainly does not deny this. Rather, the court has pledged to evaluate on a case-by-case basis the competing matters of public interest in accordance with the Wigmore criteria, the last of which states, “the court must consider whether in the instant case the public interest served by protecting the identity of the informant from disclosure outweighs the public interest in getting at the truth.”

The court is not in any way infringing the right to publish or the right to free speech, but is simply stating that such rights can never imply immunity from other matters of justice and public interest, such as the prosecution of criminal activity. A constitutional entrenchment of the right to use and protect anonymous sources would simply constitute an overreach of Sec.2 of the Charter which would result in a logistical nightmare for law enforcement officials. First and foremost, any so-called leaks from anonymous sources would simply be taken completely off the table for investigation. Law enforcement cannot simply wait for journalists to comply in an investigation, especially one which consists of a matter of great public concern.

In addition, the entire culture of anonymous sourcing could potentially wreak havoc on the public interest and result in disastrous policy consequences. Glenn Greenwald notes once such instance in the lead up to the Iraq invasion of 2003, which saw numerous anonymous sources disseminate false information. Greenwald writes,

The greatest blow to the credibility of establishment journalism over the last decade — especially the NYT and the WP — was their active, enthusiastic involvement in disseminating outright falsehoods to their readers in the run-up to the Iraq War. So glaring and destructive were their failures that even they were forced to acknowledge at least some of what they did. One of the principal steps they took in assuring their readers that they were determined that this would not happen again was the adoption of clear rules which stringently limited the use of anonymity. Anonymity was a key instrument used by dishonest government officials and subservient reporters to disseminate those pre-war falsehoods.

Despite all that, they continue to violate their own guidelines over and over by indiscriminately using anonymity in the most reckless ways. And they know they do it, because it’s been repeatedly documented, even by their own ombudsmen and reporters. Yet they blithely continue. What other conclusion could a rational person reach other than that the publishers, editors and reporters of these newspapers neither care about nor deserve journalistic credibility?”

Journalistic integrity depends heavily on the ability of the media to provide solid and sound information to their consumers in a matter that serves their right to know about vital issues which concern them. An extension of this right, no doubt, is to provide them with the ability to corroborate sources and ensure accountability of public officials or private citizens where necessary. If a journalist alleges that a crime as been committed, then it would make sense for them to cooperate in ensuring that justice is implemented where necessary. Journalists, after all, are public servants. The Judith Miller debacle from a few years back is a prime example of such a case.

The Wigmore criteria provides a sound basis by which to determine when investigating a source is in the public interest and certainly does not give the courts license to arbitrarily issue warrants against media outlets. The SCC’s decision therefore cannot be called a violation of freedom of the press, and I have not seen anyone seriously make this claim thus far.

One last important implication of this decision is the SCC’s recognition of the inherently unstable nature of anonymous sources, to which I earlier alluded. Anonymous sources are often difficult to corroborate and the trustworthiness of a source that is unwilling to go on the record is certainly questionable in some cases. Once again, to protect such sources unconditionally would essentially leave the public in limbo with regard to the truth of certain claims and stories and would in addition impede other matters of public interest. Jay Rosen, quite rightly, notes that journalism relying too much on anonymity violates the public’s right to know and understand (scroll down to first comment), entailing that confidentiality is not necessarily vital to quality journalism. Rosen writes,

Granting anonymity to sources is by definition a decision that bargains away the public’s right to know, on terms the public cannot know about. There’s no way for the reader of the account to tell whether the bargain the reporter made was a good one or a bad one.

Therefore confidentially sourced journalism is “trust me” journalism, more so that other types of reporting that carry within the account the means for judging whether the account is trustworthy. Thus the opposite of “trust me” journalism is not the untrustworthy kind but “…don’t believe me? check it yourself.” This is exactly what we cannot do when sources speak anonymously.

Given Rosen’s statement, it is difficult to believe that anonymity of sources is so vital to journalism, much less quality journalism, that it deserves constitutional protection. The SCC has recognized this and addressed the issue in a manner which still upholds freedom of the press in a meaningful manner. This is not the first time that courts have had to balance matters against public interest against one another, and in several instances the SCC has shown a deftness in ensuring that the rights accorded in the Charter are still given force while upholding other matters of public interests. This is one of those cases.

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  1. R v National Post – Case-by-case Privilege for Journalists and Confidential Sources | Entertainment & Media Law Signal

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