Leaker answers for the leak; press, for published material

[Related Media’s Public column: “Leaks to the press not so bad,” Feb. 19, 2017]

Donald Trump is not the first U.S. president afflicted by leaks. In extent and noise, though, Trump seems to have set an alltime high.

Under Trump, the White House has earned the name “a Niagara of leaks,” from one journalist who obviously benefited from it. Anthony Scaramucci, who was fired last week as chief communications officer after a classic public rant, griped he couldn’t eat dinner without media knowing about it.

Trump’s predecessor Barack Obama was no less pestered. The difference was that Obama dealt with it more efficiently and quietly. For one, he didn’t Twitter like Trump who repeatedly complains about “leaks and fake news.” And Barack went after leakers more vigorously. He used the Espionage Act ( of which the Philippines doesn’t have a replica, at least against journalists). Nine people were criminally charged and d reporters from Fox News, ABC and Associated Press were “ensnared in prosecution.” Trump still has to take legal action against a journalist.

Who are liable

As a rule, it’s the leaker who gets punished for the unlawful release. The journalist and the news outlet that publishes the story is liable only if the leaked stuff is a national-security secret or any other information whose exposure is expressly prohibited by law.

In our country, the legal prohibition is mostly on the government official or employee, the leaker, not the media, the “leakee.” The journalist and his outlet account for what they publish. As to theft of the material, only If they took part in it.

The constitutional guarantee on free speech and free press and the prohibition against prior restraint support the general rule. Our courts are also influenced by U.S. jurisprudence that has consistently upheld the same precepts.

Loyalty helps

President Duterte or his communications office* still has to complain against any leaker. It may be because his key people are loyal to him. Until now, as a glaring example, no inside info has come out to refute the claim that the president went on a secret mission in June, which Malacañang used to explain his disappearance from public view for one week. Trump’s leakers may be Obama workers still in the White House. Or each each faction in Trump’s crew is trying to put the other faction down.

The leak, as we said in a Feb. 19 Media’s Public, may be used to embarrass an official or an administration, float a trial plan or idea, return favor to a friendly journalist or spite a hostile media outlet, or promote oneself at the expense of another.

Good or bad leak

The leak is good, we’re told, if it “expands public understanding of an issue” without incurring serious harm or, if some injury results, the greater public good supports its release.

That’s why, as journalists usually do, this is prudently asked before the reporter and editor decide whether to use a leak. Is its publication expressly prohibited by law or does it open them to civil liability? And even if no criminal or civil liability attaches, is it not a “bad leak”?

Constitution’s free-speech, free-press and no-prior-restraint rules provide some guarantee. Still, prudence dictates against using a “bad leak”