Should reporters be allowed to protect whistleblowers?
By Fabiola Carletti
The Supreme Court has ruled that the media cannot guarantee unconditional anonymity to sources.
The decision was nine years in the making and at its heart were the contents of a brown envelope and a tenacious journalist who refused to hand it over.
In 2001, Andrew McIntosh of the National Post received a package. It contained information about prime minister Jean Chrétien and his alleged involvement a controversy that came to be known as “shawinigate.”
Police suspected forgery and wanted to include the reporter’s documents in their investigation. McIntosh refused, choosing to protect his source.
In the court battle that ensued, both his newspaper and the police claimed that the public interest was in their corner.
The situation raised the question: who speaks for the good of the people?
Friday’s near unanimous Supreme Court ruling means that journalists cannot, unconditionally, say that they do.
"The public has an interest in effective law enforcement," wrote Justice Ian Binnie. "The public also has an interest in being informed about matters of public importance that may only see the light of day through the co-operation of sources who will not speak except on condition of confidentiality."
Importantly, the judges acknowledged some of the great work
investigative reporters have done. Still, instead of
assigning immunity to the media -- which they noted now includes a much broader range of
bloggers, tweeters, etc. -- the judges ruled that journalistic privilege should be
determined on a case-by-case basis.
Yes, the Supreme Court decided not to grant the media blanket immunity.
Yes, the onus is on
individual journalists and media organizations to demonstrate that protecting
confidentiality is, in their situation, more beneficial to society than police access to their secret sources.
Yes, this opposes the view that the onus should be on the police to prove that they really need the information, especially since whistleblowers often have so much to lose.
… however, the Supreme Court judges did not assert that police
investigations should always trump the
protection of sources. They also formally acknowledged the importance of the reporter-informant relationship in matters that affect citizens.
Wrote Binnie: “The law should and does accept that in some situations the public interest in protecting the secret source from disclosure outweighs other competing public interests — including criminal investigations.”
Maybe it’s because I’m not a fan of absolutes -- though I don’t say this absolutely -- but I think judicial discretion based on the situation isn’t necessarily bad or good. It is, however, a new challenge.
The challenge is for journalists to explain why specific instances of confidentiality are in the public interest, and this means we have to be introspective, genuine, and convincing. We can't offer anonymity to reluctant sources as a first resort.
Don't get me wrong: we must do everything we can to adamantly protect our informants, but since we cannot make them iron-clad promises, we have to make good notes, thoughtful arguments and closely watch our own decisions as watchdogs.
In short: we must be ready to make our case.
Fabiola Carletti is a Toronto Star radio room reporter and graduate student at the UBC School of Journalism. She recently graduated summa cum laude from York University, having earned an honours double major in Professional Writing and Communication Studies. Her digital footprints are all over the internet, but you can learn more about her by reading her blog, or chasing her around on twitter.
Photo: The statue representing truth ("veritas") in front of the Supreme Court of Canada in Ottawa.