Legal system must protect journalists’ sources
Ruling in upcoming case will show whether new law has real teeth, Al-Amyn Sumar says.
An effective press depends on information supplied by sources. But, many of the sources are likely to dry up unless journalists can credibly promise to keep their identities confidential.
Those are the simple premises at the heart of the Journalistic Sources Protection Act, Canada’s recently enacted “shield” law that makes it harder to force journalists to reveal the identity of their confidential sources.
The law was rightly heralded as an important victory for democracy and freedom of the press. But if the law’s promise is clear, its full practical impact is yet to be.
That will soon change: the law is to get a crucial first test at the Supreme Court of Canada this term. There, the high court will have an opportunity to give the law real teeth — and to send a strong signal that the protection of sources is the rule rather than the exception.
The case has been brought to the high court by Marie-Maude Denis, a Radio-Canada journalist. She was ordered by a lower court to disclose the confidential sources she relied on for reporting that led to the prosecution of several former Quebec Liberal government officials, including ex-cabinet minister and former engineering company executive Marc-Yvan Cott, on corruption charges.
Cote insists that Denis’s sources were police officers who leaked confidential information improperly and purely to damage him. To make his case that the state engaged in misconduct warranting a stay of proceedings against him, he says, he must know who Denis’s sources were.
The court will have to resolve the competing interests under the new regime established by the Journalistic Sources Protection Act.
The law’s key virtue is that it tilts the balance in favour of the media on source confidentiality. Previously, it was the journalist who had to show that shielding a source’s identity was in the public interest.
The law shifts that burden to the party seeking to unmask the source, and expressly makes “freedom of the press” a factor in the balancing analysis. And if a court decides that a journalist must produce the evidence sought, it can impose conditions to protect the source’s identity.
The law recognizes that a healthy democracy requires legal protections for journalists’ sources. Journalists routinely depend on confidential sources to report stories on government misconduct and other matters of public concern.
Such sources have helped expose countless instances of abuse and wrongdoing — the sponsorship scandal in Quebec, the torture of detainees at Abu Ghraib, and sexual assault allegations against Harvey Weinstein and others, to name a few — but are equally important for reporting day-to-day stories about the inner workings of government.
And without the legal guarantee that journalists will not be required to disclose their confidential sources in all but rare cases, far fewer sources are likely to come forward for fear of reprisal or embarrassment. Or as then-U.S. Congressman Mike Pence put it in 2007, “Without the promise of confidentiality, many important conduits of
information about our government will be shut down.”
In Denis’s case, as is often true, the interest in knowing the identity of the sources is not trivial. But nor are the countervailing concerns, including freedom of the press, which the law mandates judges to consider.
Confidential sources are frequently government officials who disclose information to the press in violation of legal or professional rules to expose wrongdoing otherwise unlikely to come to light.
The effect of compelling Denis to reveal her sources would be to dissuade whistleblowers from coming forward and leave the public less informed about what its government is up to. The court’s ruling should reflect that fact, and — whatever the ultimate result — affirm that source confidentiality will not be discarded lightly.