Source confidentiality must be protected

McGill Tribune

Last Friday, the Supreme Court of Canada outlined certain principles for assessing cases in which journalists in Quebec are asked to reveal the identities of anonymous sources they use in gathering sensitive information. The Tribune feels it is vital to the public interest that reporters are able to plausibly assure sources that their identities will never be made known to the public or to those interests that might be angered by the dissemination of whatever information is being shared. To that end, we feel the court’s decision is a step in the right direction, but does not go far enough. The National Assembly of Quebec now needs to follow the court’s recommendation and enact a closely worded shield law, which, while not absolutely protecting journalists from ever having to reveal their sources, would make it clear that the onus is not on the journalist to prove she is concealing the identity in the public interest, but on the litigator to claim that they would be acting in the public interest by revealing the identity of that source.

Any proposed solution needs to address this issue’s complexity.An absolute shield law would mean an absence of journalistic accountability, and would too often prevent the courts from fairly judging certain civil and criminal cases. However, rules which make it too easy for journalists to be prosecuted for not revealing their sources would inevitably lead to greater governmental corruption and a less-informed citizenry, because individuals privy to vital information might be less willing to share it with the media. The court is right to say decisions should continue to be made on a case-by-case basis.

There must be specific principles to guide such judgments. According to the Globe and Mail, this decision makes two specific recommendations: “Journalists should be forced to reveal their sources only when there is no other alternative to get the information and when disclosure of sources’ identities is vital to the administration of justice.”

The first of these principles evades the issue entirely. The problem arises when there is no other way to get the information. Stating that in the case of an impasse the journalists will always have to yield means no longer judging things on a case-by-case basis. It is to say that the public interest is always served by using the coercive power of the state to force a reporter to betray a solemn promise to someone revealing information we might not have otherwise known, and which we are better off for knowing. This is a massive loophole in the court’s decision, a tiny asterisk next to the freedom of the press, and should not be preserved in any future legislation.

The second principle—that journalists should have to reveal their sources if concealing them would prevent “the administration of justice”—is also too heavily weighted against the journalist’s right to conceal and the source’s right to remain anonymous. By virtue of their profession, judges are more likely to think about judicial issues and not about the importance of protecting sources for the public interest.

While we agree that cases should be judged according to which outcome would further the public interest, the court is wrong to place the burden of proof on the journalist rather than on the person trying to reveal the anonymous source. Such an onus might prevent journalists from securing the confidence from their sources that is necessary to gain access to sensitive information. The Quebec government should reverse this formula, through robust legislation that gives journalists the power to do their jobs, and gives sources the incentives they need to keep us all in the know.

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