MEDIA WATCH

Are some rules made to be broken?

Not all media people agree that journalists should have ‘qualified privilege’ to be able to protect the anonymity of their sources

GEORGE BAIN October 21 1991
MEDIA WATCH

Are some rules made to be broken?

Not all media people agree that journalists should have ‘qualified privilege’ to be able to protect the anonymity of their sources

GEORGE BAIN October 21 1991

Are some rules made to be broken?

Not all media people agree that journalists should have ‘qualified privilege’ to be able to protect the anonymity of their sources

MEDIA WATCH

GEORGE BAIN

At times, the assumptions of the media are enough to give anyone pause. For instance, one assumption worth at least a fast mull, especially in light of the Montreal Gazettes disclosure of Pierre Trudeau’s latest ruminations on the Constitution, is that those of us in the news business have a divine right to define the public interest to our own transient taste. Certainly, we assume one. It was that right which Norman Webster, the editor of The Gazette, implicitly invoked when he decided—“after some agonizing over breaking the terms he had agreed to,” as the Toronto Globe and Mail reported— that he was warranted in not observing the offthe-record rule that applied to the meeting at which Trudeau spoke.

Certainly, when not just a Quebecer, but a constitutional authority and a former prime minister, says that some future Quebec government might find in the proposed “distinct society” clause the legal grounds to deport a couple of hundred thousand English-speaking Canadians, that is news. Whether it is news of transcendent public importance, to be taken altogether seriously, may be another matter; Trudeau has always liked to make extreme cases in order to prick public attention, and this was all of that—extreme. Essentially, his proposition was this: a Quebec government, if faced with a declining francophone population, could point to the first of the defining characteristics of the distinct society—a French-speaking majority—in order to say, presumably to as many anglophones as would be needed to restore the francophone majority, “Go.”

According to the 1989 edition of the Canadian World Almanac, the mother tongue of 81 per cent of the Quebec population in 1986 was French. The mother tongue of only nine per cent was English. The rest were mixed, led by Italian at two per cent. It would seem from those figures that, whatever the constitutional legalities of the matter, it is safe to say that unless the francophone population gives up breeding and the anglophones do nothing but,

the foreseen danger is not imminent.

But, OK, Pierre Trudeau throwing sand in the gears of constitutional reform is news, regardless of the quality of the sand. But what about the fact that the editor went to hear the former prime minister speak, knowing that he would be speaking off the record, and then decided that what he heard was worth publishing, and published it?

One of the reasons Webster gave for deciding to do what he did was that there were some 300 people at the same meeting. With that many having heard Trudeau say his piece, it was unlikely to remain confidential—a good point, but shaky as justification. If word of what was said inevitably would leak out, as it probably would, almost equally certainly it would reach the media and be vigorously delved into because, as Webster himself was illustrating, Pierre Trudeau is news. So the story would become public anyway. Therefore, the editor of The Gazette was breaching the terms he agreed to in going only to ensure that his newspaper got the story first, the public interest narrowly defined.

But, OK, it’s a dog-eat-dog world out there. However, a question: aren’t we, which is to say the media, in a little difficulty then with our

customary arguments in cases where a reporter may be ordered by a court, or perhaps a judicial inquiry, to identify sources? It happens when a reporter writes a story, based substantially on material supplied by a source the reporter has undertaken not to name, which becomes pertinent to some judicial proceeding. Should a reporter be made to name his or her informants? If so ordered, should the reporter yield, or, with stiff upper lip, accept whatever penalty the court may impose? (Contempt of court can bring two years.)

Not frequently, but not rarely, either, a reporter faces the dilemma, though not necessarily that penalty. There was one such occurrence in Winnipeg this summer. Bruce Owen, a reporter for the Winnipeg Free Press, was called before an inquiry into practices in the city police department and asked to name the person who enabled him and a photographer to be waiting when the police had just placed a local lawyer in custody. The lawyer said that the police set it up as part of a vendetta. A judicial inquiry followed. Owen was contemplating perhaps a stay in the slammer when the police sergeant who had tipped him off came forward and identified himself.

Not all media people agree that journalists should have “qualified privilege” to be able to protect the anonymity of their sources, as is afforded in some American states that have enacted so-called shield laws. However, to judge by affidavits filed in a few Canadian cases in which disclosure has been an issue, the majority opinion is that there should be. The favored arguments go something like this: if journalists are susceptible at any time to being made to say where their information came from, much information that should be in the public domain will not come out—because the persons who have it will fear for their jobs, or, in some cases, their lives, if their identity becomes known.

As it is not in the public interest to keep information from coming out that may expose corruption in government, say, or the operation of criminal activity, it is not in the public interest to inhibit reporters in taking information in confidence or informants in giving it. With all this goes the argument that the reporter is put in an impossible position—unable for professional reasons on the one hand to refuse to take any information at all on the promise of confidentiality to the informant, yet faced, on the other, with the no-win choice of loss of credibility if the promise is not kept and the punishment, perhaps, of a court if it is.

However, this is only the other side of the coin that The Gazettds editor, by no means the first to do so, found himself looking at. Both involve disclosure or nondisclosure of information in a journalist’s hands.

But the arguments on the two sides don’t quite meet. They are, on the one side, that the journalist must be free to decide when an offthe-record understanding assented to may be overridden by the importance of the material received, and, on the other, that a confidentiality understanding given is not to be overridden by anything, including the interests of justice. Odd, eh?