Journalists and Confidential Sources

Colliding Public Interests in the Age of the Leak

Joseph M Fernandez

• Publisher: Routledge
• Year: 2020
• Print ISBN: 9780367474126
• eBook ISBN: 9781000245769
• Edition: 1
• Topic: Social Sciences
• Subtopic: Political Process
• Index: Social Sciences

Journalists and Confidential Sources explores the fraught and widespread reliance by journalists on anonymous sources, whistleblowers, and others to whom they owe an obligation of confidentiality. It examines the difficulties afflicting such relationships; analyses the deteriorating "right to know" and freedom of expression frameworks; and explores solutions and reforms.

The book discusses key Australian and international source protection ethics rules, statutes, court cases, law enforcement actions, and case studies. It highlights weakness in journalists' professional practice codes governing confidentiality obligations; discusses inadequate journalistic appreciation of the importance of establishing clear terms and conditions underpinning confidentiality obligations; and identifies shortcomings in the law governing source protection. The book argues that despite source protection being widely recognised as an important ideal, source protection is under sustained assault, thereby undermining public access to information, and democracy itself. The work focusses on Australia but takes into account source protection in the United Kingdom, the United States, Canada, and New Zealand.

This timely contribution to the global discussion on the subject will greatly interest journalists, scholars, educators, and students especially in the areas of media law and policy, journalism, media and communication studies, and public relations; the legal fraternity; and anyone who communicates with journalists.

Part 1

Overview

1 Journalists and their confidential sources

Dicing with danger

Introduction

This book is about journalists’ promises of confidentiality to sources who seek anonymity. It examines the role of such promises in the context of informed public participation in how governments and powerful institutions govern them; how journalism’s professional practice codes and the law operate in that field; what precautions journalists and their confidential sources must take when journalism relies on such sources; and what law and other reform attention is needed for the safeguarding of such arrangements. In this work references to “sources”, unless otherwise indicated, refers to “confidential sources”. More is said about different types of journalists’ communications with contacts or sources in Chapter 5 (p. 149). While journalists are the book’s focus there are lessons for many others, especially those who rely on journalists’ confidentiality undertakings, and those who are affected by such undertakings.

The age of the leak

Officials, especially those adversely affected by leaked information, tend to exhibit disdain or outright hostility towards leaking, to which promises of confidentiality are often inextricably linked. Leaks are, however, part and parcel of governance and power jousting. Concerns about motivations behind the reliance on anonymous sources and concerns about manipulation are discussed in Chapters 6 (p. 184) and 7 (p. 220) respectively. As often noted in this book, where leaks occur the question of motives behind the leak is not far away. Leaks are, however, also central to the pursuit of truth. Promises of confidentiality to sources underpin a cornerstone value in journalism – the pursuit of truth. Notwithstanding the “absolute unanimity and utter confusion” that accompanies the term “the truth”, the pursuit of the truth is widely regarded as journalism’s “first obligation” (Kovach & Rosenstiel, 2014, p. 49). The term “truth” for present purposes is a practical or functional form of truth, and not truth in the absolute or philosophical sense (Kovach & Rosenstiel, supra, p. 42). News consumers have a right to expect that professional journalists’ first obligation will be to tell the truth (PEN America, 2017, p. 26). Journalism’s professional practice codes worldwide espouse this obligation in varying forms. In pursuing the “truth”, journalists often rely on confidential sources, whether at the exploratory stage of a story and long before the story’s shape materialises, or in producing the final story relying on such sources. Increasingly, journalists generally, and especially journalists engaged in investigative work, rely on confidential sources. This is largely due to the obstacles journalists face in accessing information and sources’ fears about coming forward. Reliance on confidential sources has become increasingly fraught. As discussed in Chapter 2, access to information that enables journalists to establish the truth has been under siege even in countries that espouse high democratic ideals. The attacks on the public’s right to know create a fertile ground for leaks and for the resulting need for entry into confidentiality agreements between journalists and sources. Leaks “may be driven by the general angst around or reflect jostling by various players in uncertain times” (Grattan, 2017). A former chair of the Australian Press Council deemed it a media responsibility to go behind sanctioned government leaks in pursuing accountability:

Accountability is vital to our community. That accountability requires quality journalism that has the trust of the community [and] well-resourced newspapers to dig behind the sanctioned government leak and press statement to get to the underlying issues.

(Stevens, 2018)

Contrary to any perception that leaks are primarily the work of malcontents and the government’s enemies who are out to destroy the established order, those in high office also resort to leaks, for various purposes, including when it suits vested political interests. More discussion about leaks, leakers, and leaking follows in Chapter 5 (p. 164); while Chapter 6 (p. 175) discusses leaks, confidentiality, and political machinations. As seen in a study cited in Chapter 6, journalists routinely provide confidentiality undertakings to senior officials. Notwithstanding official protestations against leaks and purported endorsement of legal enforcement against leakers, “authorised leakers – politicians, their staff, and senior bureaucrats – are above the law” as one commentator observed (Keane, 2019, emphasis in original). Australian journalist and academic Peter Greste who spent 400 days in detention in Egypt for allegedly reporting news that was damaging to national security wrote in his book that journalists have a responsibility to investigate and report, and to speak to government experts, “even if (especially if) those experts’ assessments contradict the politicians” (Greste, 2017, p. 191, emphasis in original). He was referring to government experts or employees who blow the whistle as anonymous sources. The scale of contemporary leaking is monumental. In an article entitled “The age of the mega-leak”, Rodney Tiffen, an emeritus professor of politics, citing various leaks over the ages including the Pentagon Papers, the Bradley Manning leaks via WikiLeaks, and the Panama Papers, wrote: “The era of digital leaking is clearly upon us” (Tiffen, 2017). The Guardian (UK)’s Luke Harding called it “the age of the leak” (Vernon, 2017a). The practice of leaking information may occur through journalistic endeavours or through actors further removed from core journalistic activity, such as through whistleblowers or groups engaging in large-scale data dumping whether indiscriminately or otherwise. Micah White, the co-founder of activist group Occupy described the Panama Papers leak as representing “the coming-of-age of leaktivism”, the so-called activist theory that leaking truthful information is an effective form of social protest (White, 2016). In the Panama Papers instance the two German reporters who received the leak of internal files and emails from a Panamanian law firm specialising in setting up opaque offshore companies paid tribute to “John Doe”, their anonymous source (Harding, 2017). Whichever route is taken, or justification offered, for the information concerned to come to light, opinion is divided as to whether the focus should be on the content of the disclosure rather than on the avenues through which the disclosures occurred or the circumstances surrounding the disclosure. Large-scale disclosures and document dumps in recent history have complicated the debate about disclosures concerning wrongdoing. It remains unsettled whether disclosures occurring, on the one hand, through avenues such as WikiLeaks, former US defence contractor Edward Snowden and former US Army soldier Chelsea Manning, and on the other hand, by international groupings of journalists such as those who brought the Pulitzer Prize-winning Panama Papers and the Paradise Papers stories, should be viewed differently for the purposes of determining which should attract stronger legal protection for sources. WikiLeaks, which published millions of documents and associated analyses – the figure it provided in 2015 was “more than 10 million” – describes itself as “a multi-national media organisation” (WikiLeaks Home Page). The international press freedom (the terms “press freedom” and “media freedom” are used interchangeably in this book) organisation Reporters Without Borders, while welcoming WikiLeaks’ exposure of “serious violations of human rights and civil liberties” committed in the name of the so-called War on Terror, said it “regrets the incredible irresponsibility” showed by WikiLeaks, which posted 92,000 leaked documents on 25 July 2010 disclosing the names of Afghans who provided information to the international military coalition (Julliard & Le Coz, 2010). On the other hand, the Panama Papers and Paradise Papers disclosures occurred through the efforts of a globally coordinated group of investigative journalists. The Panama Papers disclosures came through the International Consortium of Investigative Journalists (ICIJ) comprising more than 200 investigative journalists and 100 media organisations in 70 countries (International Consortium of Investigative Journalists, About the Paradise Papers). It comprised an investigation into politicians, criminals, and the “rogue industry that hides their cash” in a leak of more than 11.5 million financial and legal records exposing “a system that enables crime, corruption and wrongdoing, hidden by secretive offshore companies” (International Consortium of Investigative Journalists, The Panama Papers). According to the Australian Taxation Office, the Paradise Papers have revealed the extent to which intermediaries such as banks, law firms, and accountants have commoditised tax avoidance (Hutchens, 2018). The Paradise Papers disclosures were a global investigation by the ICIJ into the offshore activities of some of the world’s most powerful people and companies, and it involved 13.4 million leaked files from offshore service providers and the company registries of some of the world’s most secretive countries (International Consortium of Investigative Journalists, The Paradise Papers). The offshore company at the heart of the story launched legal action against The Guardian (UK) and the BBC to force the disclosure of the documents that formed the basis of its Paradise Papers investigation claiming their clients and colleagues “had their private and confidential information taken in a criminal act” (Staff Reporter, 2017). The case in response to the investigation undertaken by 96 media groups in 67 countries was later settled (Guardian Staff, 2018).

The obstacles in the way of access to information of legitimate public concern have risen rapidly and markedly in the post-September 11, 2001 era. National security and miscellaneous “public interest” concerns are frequently invoked to more narrowly define what citizens are entitled to know. Legislative enactments, restrictive judicial interpretations, and a pervasive culture of secrecy by governments, its agencies, and large corporations have combined to constrain the flow of information reaching those governed. As will be seen in more detail in Chapter 2, the instances of surveillance of citizens by the state, encroachments into personal privacy, and the undermining of related civil rights and liberties are unprecedented. Citizens are told to “accept a new normal – civil liberties and freedoms will be curtailed in the face of the ‘very real’ threat of terrorism” (Gomes, 2017). Against this backdrop the protection of journalists’ confidential sources has become collateral damage.

Journalists have always depended on access to sensitive information of legitimate public concern, especially where the story had an “investigative” character, through undertakings of confidentiality to sources. The need for source protection mechanisms and for awareness among the concerned parties on how to avoid the dangers associated with such confidentiality undertakings is greater than ever. Any gains the journalism profession may have had in securing protection for their confidential sources, for example through legislative recognition of the “journalist’s privilege” or shield law have been undermined by legislative and other encroachments that create a chilling effect on the willingness of sources to communicate confidentially with journalists or even communicate at all as discussed in later chapters. Chapter 2, for instance, discusses subtle and visibly draconian (p. 52) moves and the granting of expansive covert powers to government agencies; while Chapter 4 discusses arguments about whether shield laws are working (p. 136). Sources and journalists who defy the constraints court risks. A senior journalist with a major news organisation’s investigations unit observed that journalists “constantly deal with people who don’t want to talk to them” and their stories “are also more likely to attract internal review, external criticism and legal suits” (Puccini, 2018).

Journalists routinely stoutly proclaim adherence to their professional obligation to honour promises of confidentiality to their sources, even at the risk of being jailed for contempt of court for refusing to make the disclosure sought. The obligation of confidentiality to sources emanates from the professional practice codes, whose fundamental tenets “have been enunciated in codes and standards for well over a century” (Law Commission of New Zealand, 2013, para 2.34). A comparative study of the codes adopted by individual news companies, journalists’ organisations and media complaints bodies in the US, the UK, Canada, Australia, Ireland, and New Zealand shows “remarkable consistency” in the underlying principles (ibid.; citing Ellis, 2012). These codes resoundingly embody the source protection or anonymity imperative. The governing rules are expressed in different forms and in varying extents of detail. They can be found in, for example, the BBC Editorial Guidelines – UK; Editors’ Code of Practice – UK; the International Federation of Journalists’ Declaration of Principles on the Conduct of Journalists; Media, Entertainment and Arts Alliance Code of Ethics – Australia; Society of Professional Journalists Code of Ethics – US; New York Times Standards and Ethics – US; and Association of Journalists’ Statement of Principles for Investigative Journalism – Canada (Law Commission of New Zealand, 2013, para 2.35).

Freedom of expression, the right to know, and obstacles to information access

Consensus regarding perceptions and assessments of the state of freedom of expression and associated rights is often susceptible to contested characterisations among those with an interest in these ideals. It is clear, ho...

Table of contents

• Cover
• Half Title
• Series
• Title
• Copyright
• Dedication
• Contents
• Acknowledgments
• Part 1 Overview
• Part 2 Ethics codes and the law
• Part 3 Terminology, minefield, balancing interests, reforms
• Part 4 Conclusion
• Index