The Source of All Trouble…Revelations and Reservations

The source of all trouble for journalists seems to be the Source. Jyotika Oberoi explores the Journalist-Source privilege and whether it exists and urges journalists to ‘practice safe journalism’!!

Earlier this year in July the Guardian in an article wrote, ‘The New York Times journalist Judith Miller was finally jailed last week for refusing to reveal the confidential source of information for a story. The sentence sent shivers down the spines of journalists everywhere.’ In another part of the world, in India, The Times of India wrote, ‘By handing down a prison term to Miller, the US courts have sent a chilling message. Confidentiality of sources is one of the major weapons of a journalist. If that is not protected, people with critical information won’t speak out against injustice or wrongs.’

‘There can be few worse nightmares for a journalist than to appear in the witness box giving evidence against a former source for having committed a brutal murder,’ wrote Nick Martin-Clark, in the British Journalism Review. He added, ‘Journalists often end up in court for refusing to divulge their sources. I, however, appeared against my source after having given an undertaking of confidentiality.’ He justifies his actions to an outraged journalist community by explaining, ‘The principle of confidentiality, important though it is, is not an end in itself but ultimately a means to disclosure which must remain for journalists our primary purpose. This was the thrust of advice given to me by Chris Frost, chair of the NUJ Ethics Committee, when he told me in a pre-publication consultation that it was sometimes permissible to “act as a citizen”. ‘

In principle I agree with Nick Martin-Clark’s view that an absolute stance on confidentiality is akin to total pacifism or to not telling a lie even to save a life. Journalists have to decide whether there is an overwhelming society interest in the source being revealed like in the above-mentioned case. A greater public interest overrides the fact that sources are the life blood of journalism and hence sometimes in the interest of the public, it is more important that justice be served than the fact that for a democracy to function there should be free flows of information, or rather the freest possible flows of information. Barring exceptional cases however, what is a given, is that sources be protected.

Unlike me there are journalists who don’t buy Nick-Martin Clark’s explanation. John Coulter of the Irish Daily Star feels that the relationship between the journalist and his source is absolutely sacrosanct. He writes, ‘The Press Complaints Commission’s Code of Practice makes the following recommendation, “Journalists have a moral obligation to protect confidential sources of information.” In practical terms this advice could be interpreted as: “A journalist who has a genuine source providing bona fide information should take whatever steps are required to protect the identity of that source.”’

But what if a journalist comes across information that has to do with a serial killer striking again or a transnational terrorist plot or a rapist on a rampage? Would it make a difference then that the source of the information is a criminal who may have extracted a promise of strict confidentiality from the journalist and then revealed all. In such situations the journalist’s duty to protect the source naturally takes a backseat to other ethical and moral concerns like protecting the interest of society and safeguarding the lives of people.

Jim Naureckas, editor of media journal Extra!, remarks that journalists are often justified in keeping their sources secret. Government and corporate wrongdoing is frequently exposed by people without a legal right to reveal the incriminating information, who may face retribution if they are revealed as whistleblowers. Many times the public interest in learning about malfeasance outweighs the laws that protect official secrets.

Here is where the public interest test that I referred to earlier comes into play. This is to say that if someone breaks the law by giving information to a journalist, or reveals to a journalist that they have committed a crime, the journalist has to be able to argue that in that specific case, protecting the source’s identity serves the public more than bringing the source to trial.

Cases such as the Judith Miller one have resulted in an urgent reviewing of standards of journalism world over. This has raised sensitive questions, many of which are not resolved in the law, such as who owns a reporter’s notes; how far should a news organization go in protecting a source and defying a court order; can this be left to individual journalists to decide or is some definitive legislation required, like a journalistic code of conduct recognized by the law?

British journalist, Raymond Snoddy says even though he believes that the duty of journalists to protect their sources is very high, he thinks it goes too far to say that journalists should have the right to protect their sources under all circumstances. He explains that journalists should protect their sources for two real reasons. The first is an ethical issue of trust with the sources, especially in cases where people have only spoken or given information on the basis that their anonymity will be protected. And the second is a very practical reason. If journalists start taking a lackadaisical attitude towards protecting their informants then the source of really good information will simply dry up. However, there are exceptions, according to him. Clearly if a major act of terrorism is planned then the journalistic responsibility to protect sources should fall away.

As far as legislation is concerned he adds, ‘The British legal system does not formally recognize that journalists have a right to protect their sources and indeed some editors have gone to jail rather than reveal sources. I’m afraid it’s a sort of responsibility journalists have to take on themselves. There are however semi official rules. The National Union of Journalists calls for sources to be protected and that is sort of binding on all its members. What it completely lacks at the moment of course is force of law.’

On the same lines, John Wilson, former editorial policy controller of the BBC writes, ‘One of the few accepted absolutes in journalism is that confidential sources must be protected.’ Clearly if promises over confidentiality are broken then the crucial trust between the source –and implicitly all other ones –and the journalist is lost. Such a stance is reaffirmed in media codes such as Clause 7 of the NUJ.

Pete Williams from America’s NBC News says it would be impossible to do our jobs if journalists were to think ‘Every potential bit of information we get could throw somebody in the slammer. Either the source or the reporter.’ He adds with reference in particular to the Judith Miller case, ‘One of the questions that has come out of this is whether there is sort of a reporter’s privilege, like there is an attorney-client privilege, or a doctor-patient privilege, or a priest-parishioner privilege’. He says, ‘a lawyer cannot be compelled to testify in court about conversations he’s had with his client. But the privilege does not actually belong to the lawyer. It belongs to the client. It’s the client’s privilege that the lawyer is protecting. It’s the parishioner’s privilege that the priest is protecting. It’s the patient’s privilege the doctor’s protecting. So by comparison here, by the analogy, it is the source’s privilege that the journalist is protecting. And if the source waives any confidentiality requirement, then the journalist really can’t say I don’t want to do it.’

Raymond Snoddy argues that different rules apply to lawyers and journalist because of the role that they play in society respectively. Lawyers have a right to a lawyer-client privilege because they are simply advising one person, their client. Their role is not to broadcast information to the world which is what a journalist has to do.

The need of the hour is a public interest test, not necessarily an absolute privilege. What former Sunday Times Editor Philip Knightly said about cheque-book journalism, in my view applies to the issue of confidentiality of sources as well, that one has to approach every case on the basis of merit.

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