Source pro­tec­tion key to free­dom of press

St. Thomas Times-Journal - - COMMENT - AL-AMYN SU­MAR Al-Amyn Su­mar is the First Amend­ment Fel­low at the New York Times and was pre­vi­ously a law clerk at the Supreme Court of Canada. The views ex­pressed here are his own.

An ef­fec­tive press de­pends on in­for­ma­tion sup­plied by sources. But, many sources are likely to dry up un­less jour­nal­ists can cred­i­bly prom­ise to keep their iden­ti­ties con­fi­den­tial.

That’s the 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 con­fi­den­tial sources. The law was 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 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 con­fi­den­tial sources on whom she re­lied 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 Côté, on corruption charges. Côté in­sists De­nis’s sources were po­lice of­fi­cers who leaked con­fi­den­tial in­for­ma­tion im­prop­erly 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 it tilts the bal­ance in favour of the me­dia. 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.

The law rec­og­nizes that a healthy democ­racy re­quires le­gal pro­tec­tions for jour­nal­ists’ con­fi­den­tial sources. 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.

In De­nis’s case, 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. 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.

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