Media Secrecy and confidential sources
Whether a journalist can exempt from the obligation on the basis of a journalistic privilege rooted either in the Constitution or the Charter of Rights and Freedoms which guarantees freedom of expression, “including freedom of the press and other media of communication”, or in the common law.
The media interests are clearly implicated when the police seek to seize documents in their possession. Even where no privilege is found to exist, warrants and assistance orders against the media must take into account their “special position” and be reasonable in the “totality of circumstances”.
Claims of journalist‑source privilege should be resolved on a case‑by‑case basis applying the Wigmore criteria
Where a journalist has taken credible and reasonable steps to determine the authenticity and reliability of a source, one should respect his or her professional judgment and pause before trespassing on the confidentiality which is the source of the relationship. In a given case, demonstrable and profound injury to the journalist/source relationship will result from disclosure of the documents and potentially of the identity of the source. On the other side of the balancing exercise, the benefits of disclosure range from speculative to negligible. While it is undisputed that the investigation of crime is an important public objective, the evidence sought by the state is of only questionable assistance in a given case. A search warrant of media premises is a particularly serious intrusion, and a decision should not be made about its propriety without submissions from the party most affected. The operating presumption should be that the media’s unique institutional character entitles it to notice when a search warrant is sought against it unless there are urgent circumstances justifying an ex parte hearing.
It is well established that freedom of expression protects readers and listeners as well as writers and speakers. It is in the context of the public right to information about matters of public interest that the legal position of the confidential source or whistleblower must be located. The public has an interest in effective law enforcement. The public also has an interest in being informed about matters of public importance that may only see the light of day through the cooperation of sources who will not speak except on condition of confidentiality. The role of investigative journalism has expanded over the years to help fill what has been described as a democratic deficit in the transparency and accountability of our public institutions. There is a demonstrated need, as well, to shine the light of public scrutiny on the dark corners of some private institutions. The appellants and their expert witnesses make a convincing case that unless the media can offer anonymity in situations where sources would otherwise dry‑up, freedom of expression in debate on matters of public interest would be badly compromised. Important stories will be left untold, and the transparency and accountability of our public institutions will be lessened to the public detriment.
In appropriate circumstances, accordingly, the courts will respect a promise of confidentiality given to a secret source by a journalist or an editor. The public’s interest in being informed about matters that might only be revealed by secret sources, however, is not absolute. It must be balanced against other important public interests, including the investigation of crime. In some situations, the public’s interest in protecting a secret source from disclosure may be outweighed by other competing public interests and a promise of confidentiality will not in such cases justify the suppression of the evidence.
Freedom to publish the news necessarily involves a freedom to gather the news, but each of the many important news gathering techniques, including reliance on secret sources, should not itself be regarded as entrenched in the Constitution. The protection attaching to freedom of expression is not limited to the “mainstream media”, but is enjoyed by “everyone” who chooses to exercise his or her freedom of expression on matters of public interest. To throw a constitutional immunity around the interactions of such a heterogeneous and ill‑defined group of writers and speakers and whichever “sources” they deem worthy of a promise of confidentiality and on whatever terms they may choose to offer it (or, as here, choose to amend it with the benefit of hindsight) would blow a giant hole in law enforcement and other constitutionally recognized values such as privacy. The law needs to provide solid protection against the compelled disclosure of secret sources in appropriate situations, but the history of journalism shows that the purpose can be fulfilled without the necessity of implying a constitutional immunity. Accordingly, a judicial order to compel disclosure of a secret source in accordance with the principles of common law privilege would not in general violate the principle of freedom.
Although the common law does not recognize a class privilege protecting journalists from compelled disclosure of secret sources, a journalist’s claim for protection of secret sources can be assessed properly using the case‑by‑case model of privilege. The Wigmore criteria provide a workable structure within which to assess, in light of society’s evolving values, the sometimes‑competing interests of free expression and the administration of justice and other values that promote the public interest. This will provide the necessary flexibility and an opportunity for growth that is essential to the proper function of the common law.
The media may ask the court to uphold a promise of confidentiality must prove all four criteria and no burden of proof shifts to the State. This includes, under the fourth criterion, proving that the public interest in protecting a secret source outweighs the public interest in a criminal investigation. The weighing up under this criterion will also include the nature and seriousness of the offence under investigation, and the probative value of the evidence sought to be obtained measured against the public interest in respecting the journalist’s promise of confidentiality. The underlying purpose of the investigation is relevant as well. Until the media have met all four criteria, no privilege arises and the evidence is presumptively compellable and admissible. Therefore, no journalist can give a secret source an absolute assurance of confidentiality.
The public interest in freedom of expression is of immense importance but it is not absolute and in a given circumstance it must be balanced against other important public interests, including the investigation and suppression of crime. The courts understand the need in appropriate circumstances to protect from disclosure the identity of secret sources who provide the media, on condition of confidentiality, with information of public interest, but if the journalist recognized that his source had provided the document “to deliberately mislead the public” the source would no longer be worthy of protection. The Court accepted that freedom to publish the news necessarily involves a freedom to gather the news. We should likewise recognize an important element in the newsgathering function (especially in the area of investigative journalism) is the ability of the media to make use of confidential sources. Viewed in this light, the law should and does accept that in some situations the public interest in protecting the secret source from disclosure outweighs other competing public interests — including criminal investigations. In those circumstances, the courts will recognize an immunity against disclosure of sources to whom confidentiality has been promised.
The investigation and punishment of crime is vital in a society based on the rule of law but so is the freedom of the press and other media of communication. The general principle that the public has the right to every person’s evidence is not absolute. Narrow exceptions have been recognized as necessary to further precisely defined and overriding public interests. Thus the identity of the police informant is shielded from an accused. A civil litigant has no right to know what the opposing party privately confided to its lawyer. Spouses cannot generally be compelled to testify against each other. Information pertaining to national security and Cabinet confidences may be withheld on the basis of what is called public interest immunity.
It is well established that freedom of expression protects readers and listeners as well as writers and speakers. It is in the context of the public right to knowledge about matters of public interest that the legal position of the confidential source or whistleblower must be protected. The public has an interest in effective law enforcement. The public also has an interest in being informed about matters of importance that may only see the light of day through the cooperation of sources who will not speak except on condition of confidentiality.
The justice of the peace should ensure that a balance is struck between the competing interests of the state in the investigation and prosecution of crimes and the right to privacy of the media in the course of their news gathering and news dissemination. It must be borne in mind that the media play a vital role in the functioning of a democratic society. Generally speaking, the news media will not be implicated in the crime under investigation. They are truly an innocent third party. This is a particularly important factor to be considered in attempting to strike an appropriate balance, including the consideration of imposing conditions on that warrant.
Problems could arise in determining the respective rights and immunities of the journalist and the source to whom confidentiality has been promised. In the past, secret sources have voluntarily stepped out from the shadows to reveal themselves with or without the journalist’s consent. Is the journalist now to be given the right to object because, for example, disclosure might reveal “journalist methods” and “journalistic networks”? We do not think such a restriction would in general serve the public interest in the search for truth. On the other hand, the source cannot be said to be the holder of the privilege if, as here, the journalist reserves the right to “out” the secret source unilaterally if, in the journalist’s personal view, the conditions on which anonymity were offered have not been met. In the case of solicitors and their clients, the privilege clearly belongs to the client. Are we to say that journalistic privilege attaches both to the journalist and the secret source? If so, what happens if they fall into disagreement? It is particularly important in the case of class privilege that the rules be clear in advance to all participants so that they may govern themselves accordingly.
In the United Kingdom, no class privilege attached to journalists at common law: Ashworth Hospital Authority v. MGN Ltd.,  UKHL 29,  1 W.L.R. 2033. The same is true in Australia, see McGuinness v. Attorney‑General of Victoria (1940), 63 C.L.R. 73, and John Fairfax & Sons Ltd. v. Cojuangco (1988), 165 C.L.R. 346. In the United States, the concurring judgment of Powell J. in Branzburg v. Hayes, 408 U.S. 665 (1972), which from the media perspective put the best face on the majority’s rejection of any First Amendment journalistic privilege, rejected a class privilege but held open the possibility of a case-by-case privilege:
. . if the newsman is called upon to give information bearing only a remote and tenuous relationship to the subject of the investigation, or if he has some other reason to believe that his testimony implicates confidential source relationships without a legitimate need of law enforcement, he will have access to the court on a motion to quash and an appropriate protective order may be entered. The asserted claim to privilege should be judged on its facts by the striking of a proper balance between freedom of the press and the obligation of all citizens to give relevant testimony with respect to criminal conduct. The balance of these vital constitutional and societal interests on a case-by-case basis accords with the tried and traditional way of adjudicating such questions.
In the United Kingdom, journalistic-secret source privilege is now covered by the Contempt of Court Act 1981 (U.K.), 1981, c. 49. The U.K. Parliament has created a presumptive immunity in defined circumstances, subject to being overridden on enumerated grounds. Section 10 provides that:
No court may require a person to disclose, nor is any person guilty of contempt of court for refusing to disclose, the source of information contained in a publication for which he is responsible, unless it be established to the satisfaction of the court that disclosure is necessary in the interests of justice or national security or for the prevention of disorder or crime.
Statutes offering similar protections exist in a number of states of the United States. In Australia there exists a “shield law” both at the federal level and in New South Wales. New Zealand enacted such a law in 2006. In Canada a number of legislative proposals have been considered both at the federal and provincial level but none has received legislative approval.
When applied to journalistic secret sources, the case-by-case privilege, if established on the facts, will not necessarily be restricted to testimony, i.e. available only at the time that testimony is sought from a journalist in court or before an administrative tribunal. The protection offered may go beyond a mere rule of evidence. Its scope is shaped by the public interest that calls the privilege into existence in the first place. It is capable, in a proper case, of being asserted against the issuance or execution of a search warrant.
The “Wigmore criteria” consist of four elements as follows.
First, the communication must originate in a confidence that the identity of the informant will not be disclosed.
Second, the confidence must be essential to the relationship in which the communication arises.
Third, the relationship must be one which should be “sedulously fostered” in the public good .
Finally, if all of these requirements are met, the court must consider whether in a given case the public interest served by protecting the identity of the informant from disclosure outweighs the public interest in getting at the truth.
The media’s role in disseminating information is pivotal in its contribution to public debate and thoughtful decision-making. Where there is a potential impediment to the responsible performance of this role, a careful weighing of interests must be undertaken.
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Journalist means a person whose main occupation is to contribute directly, either regularly or occasionally, for consideration, to the collection, writing or production of information for dissemination by the media, or anyone who assists such a person.
Journalistic source means a source that confidentially transmits information to a journalist on the journalist’s undertaking not to divulge the identity of the source, whose anonymity is essential to the relationship between the journalist and the source.
Freedom of press means freedom of the press encompasses the ability of the media to gather information, maintain confidential relationships with journalistic sources and produce and publish news without fear of obstacles to their activities.