Source protection key to freedom of press
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.