OK, maybe I’m being a bit over-dramatic. But if you’re considering leaking a document anonymously to the media, confident that you’ve been promised your name will be kept secret by the journalist, think again.
Today, the National Post lost an appeal which pitted confidentiality of sources against the interests of law enforcement. And the court has ordered the Post to reveal the identity of an anonymous source.
The case stems from the Shawinigate controversy (I’m not a fan of “-gate” terms, but this one just rolls off the tongue, doesn’t it?), in which then-prime minister Jean Chrétien had apparently helped to secure a generous loan for a hotel in his home riding, next to a golf course he technically still had a financial interest in.
Specifically, the case concerns a document received by Post reporter Andrew McIntosh, which appeared to be a loan application from the hotel. McIntosh gave his source a guarantee of anonymity in exchange for the document. But when he attempted to verify it with the bank, the bank declared it to be a forgery and began an investigation.
That investigation led to a court order for the Post to produce the document and the envelope it came in. The Crown wanted to determine the identity of the alleged forger and potentially file charges.
But (according to McIntosh) the source of the document claims he received it anonymously through the mail (hence McIntosh’s need to authenticate it), so if this is true the source would not have been the forger.
The ruling by the Ontario court of appeal argues that the interest of law enforcement to investigate a forgery intended to bring down a sitting prime minister outweighs the Post’s need to protect its sources.
In it, the court agrees with the Crown that the documents themselves are important evidence, and that the leak itself is the crime they’re investigating. Insert reference to the Valerie Plame scandal here, which also wasn’t very friendly to the media’s anonymous sources.
A key phrase comes in para. 75:
(Section 2(b) of the Charter, which guarantees freedom of the press) does not guarantee that journalists have an automatic right to protect the confidentiality of their sources.
Similarly, in para. 79:
The journalist-confidential source relationship is not protected by a class privilege. However […] the confidentiality of the relationship between a journalist and the journalist’s source may be protected on a case-by-case basis.
In para. 94:
Journalists can never guarantee confidentiality. There will be some cases – and this is one of them – where the privilege cannot be recognized. Refusing to recognize the privilege in appropriate cases will not, in our view, cause media sources to “dry-up”.
Nice to see the court is so confident. But to me, this ruling seems to say that a journalist can be forced to give me up if there’s a reasonable belief (whether it’s true or not) that knowing my identity may be important to the police investigating a crime.
Considering how many confidential leaks involve some issues of legality, I could certainly see more people clamming up about important issues of public interest in the belief that they could be prosecuted, fired or otherwise be punished for bringing it to light.
Confidential sources are confidential, except when the government decides it wants to know.
The judgment also includes a dig at new media* includes an argument from the Crown which suggests that new media journalists aren’t journalists, in para. 98:
[The Crown submits that …] Today, many persons, especially by using the internet, may be called “journalists” or “the press” because they disseminate information to the public, yet may not merit the journalist-confidential source privilege.
We reject the Crown’s first contention. The case-by-case approach to privilege does not require us to establish the boundaries of legitimate journalism.
So feel free to ignore what I’m saying here. Because according to the Ontario court of appeal, I’m probably not a journalist.*
*I totally misread the judgment originally and read a summary of the Crown’s argument as the judgment of the court. My apologies.
UPDATE:
Howdy!
There’s still hope. It hasn’t gone to the Supreme Court, yet, and I can’t see the NP rolling over without giving it their all.
the judgment does NOT include a dig at new media on para. 98. The selection from para. 98 that you are using is seriously out of context. That refers to an assertion made by the Crown and was explicitly rejected by the OCA in the very next paragraph.
You’re right. I’m an idiot. I’ve updated the post with a correction.