A Right to Protect? The confidential source controversy in journalism
By Blake Sifton | June 9, 2008
The right of journalists to use and protect confidential sources is being hotly debated in Canadian newsrooms and courthouses.
Many journalists say that confidential sources are an essential tool in the search to uncover information of great public interest.
"My ability to protect confidential sources is paramount to my ability to do my job," says former National Post investigative reporter Andrew McIntosh.
However, Canadian police argue that journalists have no right to protect the identity of their sources when they are sought as part of a criminal investigation. In many cases judges have agreed with them.
"The court must ensure that the privacy interests of the press are limited as little as possible. But the court must also balance against the privacy interest of the press the state or other societal interests in getting at the truth," wrote Judge John Laskin in a 2008 decision at the Ontario Court of Appeals.
The competing interests of journalists and police officers have been brought to a seemingly irreconcilable head. Journalists must keep the promises they make to their sources and police must solve the cases to which they're assigned.
There's no unanimity on the thorny issue of confidential sources even among journalists themselves. Some argue that confidential sources diminish press accountability and can provide cover for biased sources or even intentionally deceptive journalists.
"In some cases confidential sources are misused when we allow individuals to make personal attacks and hide behind the wall of anonymity," says Bob Steele, scholar for journalism values at the Poynter Institute in St. Petersburg, Florida.
Recent court decisions continue to swing the pendulum back and forth, and as the contradictory rulings mount, the debate over the use of confidential sources in Canada is as lively and unresolved as ever.
An Eventual Victory
Hamilton Spectator reporter Ken Peters is a firm believer in the virtue of confidential sources.
"Without confidential sources we are not able to do our jobs. It's an important and invaluable tool for journalists to have," Peters says.
When Peters cited documents leaked to him by an anonymous source in a 1995 story about abuses in a Hamilton nursing home, he had no idea that ten years later his decision to grant confidentiality would see him convicted of contempt by Ontario's Supreme Court.
In 2004, the subject of Peters' story, the St. Elizabeth Home Society, launched a $15.5-million defamation lawsuit against the City of Hamilton. Peters was called to testify and told to reveal his confidential source by Ontario Supreme Court Judge David Crane.
Peters politely refused the request.
"I knew in my heart that I could not reveal the confidential source then walk back into my newsroom. It just goes against all the grains of principal that I have for the craft," Peters said.
Facing a contempt of court conviction, Peters asked Judge David Crane to jail him rather than issue a fine, knowing that his employer would step in to pay it.
"I felt that if there was punishment to be meted out it should have some direct bearing on myself," Peters explained.
However, Judge Crane did not oblige him and the Hamilton Spectator reporter was hit with a $31,600 fine, the most severe penalty ever given to a Canadian journalist for contempt of court.
The refusal to identify his source and the subsequent conviction propelled Peters to the forefront of the debate over the right of Canadian journalists to grant confidentiality.
"I try to educate other journalists about the risks that are there because if this could happen to me it could happen to anyone of them," said Peters.
On March 17, 2008 Peters received the good news he had waited for when the Ontario Court of Appeals overturned his conviction.
"Freedom of expression and freedom of the media, protected by . . . the charter, have a direct bearing on a journalist's claim to confidentiality," wrote Justice Robert Sharpe in the court's decision.
"The media has a vital role in gathering and disseminating information in a free and democratic society…Canadian courts have recognized that journalist-informant confidentiality is important for effective news gathering," he added.
Peters said of his victory, "The courts have recognized that in some cases journalists should be allowed to keep confidential sources…I'm heartened by that."
Despite his ordeal Peters does not regret the stance he took.
"It was a very difficult experience, one that I don't wish upon any other journalist. But looking back, I feel that I took the kind of action that I needed to take."
The Stakes Are Raised
In April 2001, an anonymous source gave National Post reporter Andrew McIntosh a sealed envelope containing a loan approval document related to the Shawinigate scandal involving former Prime Minister Jean Chrétien.
Chrétien had been accused of pressuring the Business Development Bank of Canada to give a $615,000 loan to Yvon Duhaime in 1997. Duhaime had purchased Chrétien's shares of the Grand-Mère golf club in St. Maurice, Québec and had not yet paid the Prime Minister.
In 2002, the RCMP obtained a search warrant and an assistance order against McIntosh's former editor, Ken Whyte, ordering him to locate and handover the document. The National Post refused, opting instead to challenge the order in court.
In his affidavit in support of an application to quash the warrant and assistance order McIntosh explained why he had followed Shawinigate so closely.
"I was interested in learning how a federal bank had made such a large loan to a man with a criminal record and a history of failing to pay his income taxes," wrote McIntosh.
McIntosh says that upon receiving the document in question he immediately understood its significance.
"We all realized that if the document I had received was genuine …it was extremely sensitive and its contents, if proven to be accurate, could have dire political and other consequences for the career of the Prime Minister," McIntosh wrote.
Whereas Ken Peters was told to reveal the identity of the source who leaked him documents, the RCMP ordered McIntosh to hand over his document believing that they could ascertain the identity of the source through DNA testing of the envelope.
McIntosh says that he was asked by his confidential source to destroy the original document and the envelope it had been delivered in but decided to refuse the request.
"I told Confidential Source X I had taken steps to secure the document and the envelope but that I would not dispose of them. I said this would be both improper and highly unethical…" wrote McIntosh.
While Peters was convicted and slammed with a heavy fine before eventually being vindicated, Andrew McIntosh initially received a favourable ruling in his contempt case only to be ordered to reveal his source by the Court of Appeals.
Superior Court Judge Mary Lou Benotto agreed to quash the warrants in a January 21, 2004 ruling.
"The media's ability to effectively gather and disseminate news would be undermined if source confidentiality were not protected," she wrote in her decision.
"If the journalist-informant relationship is undermined, society as a whole is affected. It is through confidential sources that matters of great public importance are made known."
Having initially celebrated victory, McIntosh's effort to protect his source suffered a serious setback when the Ontario Court of Appeals reversed Judge Benotto's ruling on February 29, 2008.
"Journalist-confidential source privilege is not a blanket privilege. Journalists can never guarantee confidentiality. There will be some cases – and this is one of them – where the privilege cannot be recognized," wrote Judge John Laskin in the court's decision.
The National Post has vowed to appeal the ruling at the Supreme Court of Canada. In an editorial printed on March 25, 2008, they articulated this intention clearly.
"The decision of the Ontario Court of Appeal strikes at the heart of the media's ability to do their job. Fundamental constitutional rights must never be taken for granted. And so often, their protection relies on individuals and organizations being willing to fight for them. Fight we shall," wrote the Post's editors. Ethical Implications
As the legal battle over the right to protect confidential sources rages on, some media critics are questioning the professional and ethical implications of the often-used practice, and suggesting possible solutions to lessen the potential harm.
Bob Steele carefully condones the use of anonymous sources.
"There are those rare times when it may be necessary to use a source that is not attributed. It should be information that is of profound importance to the public and cannot be obtained through normal means of attribution."
However, Steele warns that accountability is lost when sources are not named.
"Attribution is one hallmark of factual accuracy, you leave out names and you diminish the factual accuracy, the precision, of the story," says Steele.
In order to mitigate the potentially harmful effects of lost accountability, some have suggested giving small details about a confidential source.
"There is value in giving the readers some information that helps them gauge and understand the position of the source, the validity of the sources' perspective and in some cases their potential bias," says Steele.
However, Steele warns news organizations must be careful when striving for "maximum identification".
"We should be cautious, if you're giving an individual protection of their identity you don't want to blow that by inadvertently identifying them."
Trust and Truth
In order for confidential sources to be used properly, the agreement to grant confidentiality must be rooted in trust and truth.
Sources must be able to trust that journalists will not reveal their identities and journalists must trust that their sources are telling them the truth.
Andrew Mitrovica, a contributing editor at the Walrus, says that a journalist has a responsibility to reveal, not defend, a confidential source if it becomes clear that the potentially damaging information they were given was false.
"If I am misled, then whatever agreement we struck to shield your anonymity is voided by your actions, there has to be some responsibility placed upon the source," he says.
Citing confidential intelligence sources, Ottawa Citizen reporter Juliet O'Neill published a 1,500-word article in November 2003, which strongly suggested that Canadian citizen Maher Arar was guilty of terrorism.
Arar became a victim of a so-called "extraordinary rendition". Identified as a terror suspect, he was arrested in New York and deported to Syria where he was imprisoned and tortured. He was later found to be innocent by the Canadian Commission of Inquiry.
The Prime Minister and the RCMP have apologized to Arar. Ms. O'Neill has not.
After RCMP officers raided her home seeking to learn the identity of her sources, many hailed O'Neill as a hero for refusing to reveal them.
Andrew Mitrovica is one of the only commentators to criticize O'Neill for publishing a damning indictment of an innocent man.
"Despite effectively having stamped the word terrorist on Mr. Arar's forehead – a stain that is not easily removed – Ms. O'Neill and her many supporters in the media vehemently insisted that she was the victim," wrote Mitrovica in a spring 2004 article in Media Magazine.
Mitrovica believes that O'Neill was not critical enough of the information she received from her anonymous sources.
"The piece of 'investigative journalism' could just as well been written by CSIS or the RCMP," he wrote.
Mitrovica has little sympathy for O'Neill's high profile government sources and believes that she should have identified them once it became clear that the evidence they had presented her with was false.
"I don't even call them sources, I call them scoundrels. These are state officials who engineered an attempt to destroy a human being," he says.
Mitrovica blames the lack of public criticism of Ms. O'Neill on a blind sense of solidarity amongst Canadian journalists.
"We live in a big country but the media landscape is quite small. It's almost heresy to try to point an accusatory finger towards your colleagues, it just doesn't happen," he says.
Mitrovica believes that journalism as a whole suffers when reporters fail to criticize the indiscretions of their colleagues.
"Far too often the fourth estate doesn't hold itself to the same measure of accountability and transparency that it does other powerful institutions," he says.
Intentional Deception?
While the manipulation of journalists by their sources is a serious risk, potentially more troubling is the notion that journalists may use the anonymity of their sources to print careless work or intentionally misleading information.
In an interview with PBS Frontline, Seymour Hersh said of granting confidentiality, "sometimes it's a way of disguising a weak source. I used to see that at the New York Times…"
Several major news organizations insist that at least one editor know the identity of the confidential sources used by their reporters. The New York Times, the Washington Post and the CBC all follow this criterion.
Steele supports this practice, believing that it can help prevent potential abuse.
"It can in some cases deter a fabrication. In that rare case where a journalist is making up a source and using the veil of anonymity to hide it," he said.
Steele insists that the editor needs to be an active participant in the decision to grant confidentiality.
"It should be a part of the process, not a step at the end of the line where the editor asks, 'who is that source?" Steele says.
However, as the McIntosh case has shown, sometimes an editor's knowledge of an anonymous source's identity only serves to get more people charged with contempt when a judge orders the source revealed.
The Coals Remain White Hot
While the ethical implications of using confidential sources are endlessly debated amongst journalists and media critics, legal clarity on the issue remains elusive as well.
The rulings handed down in the cases of Ken Peters and Andrew McIntosh have sent contradictory messages to Canadian journalists regarding the right to protect their sources.
However, with the McIntosh case set to appear before the Supreme Court of Canada it appears as if an authoritative decision may soon be handed down.
Though the issue has evoked strong emotions from all sides, Bob Steele wonders why it often takes a high profile trial for the rights of journalists to be defined.
"I'd like to think that the issues are pretty clear in these matters and it should not take a situation where the coals are white hot in the fire in order for reasonable people to make good decisions."
HISTORIC STORIES UNCOVERED USING CONFIDENTIAL SOURCES
Canadian Examples
Agence de Presse Libre du Quebec break-in, 1972 Members of the RCMP Security Service broke into the offices of the left-wing group Agence de Presse Libre du Quebec and stole documents. An investigation by the Quebec Justice Department revealed that three officers had failed to obtain a search warrant, to which all three plead guilty.
Tunagate, 1985 John Fraser, the Canadian minister of fisheries under Prime Minister Brian Mulroney, was forced to resign after CBC's The Fifth Estate broke a story that he had ordered a million cans of StarKist tuna to be released for sale to the public against the warnings of inspectors. The tuna, according to CBC, was so spoiled that it could not be used for cat food.
Lavish lifestyle of Hydro-Quebec officials exposed, 1996 Andrew McIntosh revealed the details of a 1995 farewell party for the outgoing chairman of Hydro-Quebec, the provincially-owned utility. Hydro Quebec's profits were down 72% that year and the government had made substantial cuts to social services. The bill for the party exceeded $141,000.
Illegal Tobacco Smuggling, 1999 William Marsden, an investigative reporter at The Montreal Gazette revealed that Canada's three major tobacco companies had facilitated illegal smuggling of tobacco products into Canada after government tax increases.
Exploitation in Toronto's taxi industry, 1999 Peter Cheney, an investigative reporter for The Toronto Star revealed how insiders in Toronto's taxi industry were growing rich at the expense drivers, the public and the city. The public outcry that followed the publication led to substantial reforms.
Dirty Dining, 2000 A Toronto Star series about unsanitary conditions in restaurants revealed a food inspection system that had ignored numerous food safety problems, closed no restaurants for two years and had issued fines to 11 restaurants. A four-month inspection was called immediately that led to 60 closings and over 100 charges laid against restaurants.
Vaughan slaughterhouse, 2000 The Toronto Star uncovered that an illegal slaughterhouse was being operated in Vaughan, Ontario. The slaughterhouse had no running water, refrigeration or proper sanitation. The Star reported that the slaughterhouse had never been visited by a government inspector. The Ministry of Agriculture, Food and Rural Affairs as well as the Ontario Society for the Prevention of Cruelty to Animals launched separate investigations.
Canada becomes haven for toxic waste, 2001 A Globe and Mail report revealed that hazardous-waste dumping from the U.S. into Canada had increased fivefold between 1993 and 1999. The report revealed that Canada is accepting more than twice as much hazardous waste from the U.S. as Mexico.
Nortel Networks, 2004 Nortel Networks was the subject of numerous stories when the U.S. Securities and Exchange Commission and the Ontario Securities Commission began investigating financial restatements that said the company was doing well despite internal discussions about a market downturn. The company's calculated profit for 2003 had to be downgraded by 50 per cent. An RCMP criminal investigation soon followed and Nortel cut 3,500 jobs, as well as seven people from its finance department. Legal action was brought against CEO Frank Dunn, who was fired in 2004.
Airbus affair, 2007 Former Prime Minister Brian Mulroney and former Newfoundland Premier Frank Moores were accused of taking kickbacks from German-Canadian arms dealer Karlheinz Schreiber related to the sale of Airbus planes to Air Canada, at the time a Crown corporation. Mulroney sued the government and received a settlement of $2.1 million. However, the allegations of taking a kickback resurfaced in 2007 when Schreiber filed an affidavit showing his intention to sue the former Prime Minister for services not rendered.
American Examples
The Pentagon Papers, 1971 Detailed history of US involvement in Vietnam commissioned by Robert McNamara. Revealed that the United States government deliberately expanded its role in the war with airstrikes against Laos. Leaked to reporter Neil Sheehan of The New York Times by Daniel Ellsberg.
Watergate, 1972 Scandal that led to the resignation of President Richard Nixon. Washington Post reporters Carl Bernstein and Bob Woodward relied extensively on anonymous sources, the most famous of whom became known as "Deep Throat."
Iran-Contra, 1987 Scandal in which high-level members of the Reagan administration were involved in the illegal sale of weapons to Iran. The proceeds of the transaction were then funneled to counter-revolutionary forces in Nicaragua.
Korean War Massacre, 2000 Associated Press reporters revealed that American soldiers had killed hundreds of Korean civilians in a massacre in the beginning of the Korean war.
The Valerie Plame affair, 2005 New York Times reporter Judith Miller was convicted of contempt of court and jailed for 85 days after refusing to surrender evidence related to the outing of CIA agent Valerie Plame.
Secret CIA prisons, 2005 Dana Priest of The Washington Post published an article revealing that the CIA had transported Al Qaeda terror suspects to secret prisons in Eastern Europe for interrogation. BALCO case, 2006 The Bay Area Laboratory Co-Operative was found to have supplied professional athletes with growth hormones. Two San Francisco Chronicle reporters were jailed after refusing to reveal the source that leaked them transcripts from a grand jury investigation of BALCO.