Gavin Ellis: Protecting confidentiality a firm press obligation

Gavin Ellis

Opinion

The Prime Minister is a source of information. Normally the only stunning aspect of that statement would be its banality. This week, however, is different.

It gave rise to headlines, threats of legal action by a former police commissioner, and a response by Helen Clark, fresh from Gallipoli, that she would put up a fight that would make an Anzac proud. At the centre of the action was the revelation in court documents presented by the Sunday Star-Times publisher, Fairfax New Zealand, that she was a corroborating source for the story that led to Police Commissioner Peter Doone relinquishing the post in 2000.

Whether or not the Prime Minister libelled Mr Doone is a matter that may be played out in court. But there is another issue that should be exercising the minds of readers and journalists - the creed of confidentiality. The Code of Principles of the New Zealand Press Council states: "Editors have a strong obligation to protect against disclosure of the identity of confidential sources." It does go on to say they also have a duty to ensure the sources are reliable.

Britain's Press Complaints Commission describes the protection of sources as a moral obligation.

Helen Clark was unnamed in the Sunday Star-Times article. She was not, the newspaper's lawyers say, the primary source. Her role, according to court documents was simply to corroborate the story. Her involvement, however, was not revealed in the story.

Where does the journalist's responsibility to sources end? Is the obligation of confidentiality solely to the primary informant, or do all of those asked to contribute on an unnamed basis have a right to have their anonymity maintained?

Consider the following as a small test: In his autobiography, former Washington Post editor Ben Bradlee recounted an episode during the Watergate scandal. On the eve of breaking the story, reporter Carl Bernstein was - at Bradlee's insistence - seeking a fourth source to corroborate the story that would bring down the President. Bernstein rang a Justice Department lawyer who said he would like to help but could not. The reporter said he would read the story to him anyway and if the lawyer were still on the line after he counted to 10 he would take it as confirmation the story was correct. The lawyer stayed on the line and the rest is history.

Should that source have been given the same anonymity as Deep Throat still enjoys today? Yes, because the story may not have run without his tacit confirmation. Bradlee did not reveal his identity.

Watergate remains the archetypal study of the role of confidential sources and the need for corroboration before their information is published. There is a saying in American journalism that sums up corroboration: "If your mother says she loves you, check it out".

Editors are reluctant participants in anonymous stories. Their preference is for on-the-record statements. Attribution equals accountability.

But there are occasions when confidentiality is a prerequisite for the supply of information. If the story is important enough and the information checks out, confidential sources are a legitimate means to the end.

Last year, the Herald was brought before the High Court after an interlocutory application by lawyers for the so-called "Israeli spies" seeking the source of the story that revealed their activities. The Herald declined to reveal the source, risking contempt of court.

Herald lawyer Bruce Gray drew attention to comments by an English judge who referred to the protection of journalists' sources as "one of the basic conditions of press freedom".

Justice Judith Potter recognised the need to strike a balance in the case between a fair trial and freedom of expression and did not compel the newspaper to answer questions that would reveal the source.

The newspaper's position had been starkly simple. It would not reveal a confidential source and would bear the consequences.

Disclosure of confidential sources is an issue over which journalists have little room to move. Two American reporters who refused to disclose the source of a story that identified a CIA agent are only a Supreme Court appeal away from 18-month jail sentences.

The circumstances under which unnamed sources might be revealed are few and far between. One instance might be where non-disclosure presents an imminent danger of death or serious injury to another individual. A further justification might be where a source had acted in bad faith. Self-defence - legal rather than physical - is seldom cited as a reason for disclosure.

The Prime Minister may have volunteered her involvement to the court, in which case the newspaper would be under no further obligation to protect her identity. If not, she would have been entitled to that protection.

Once a source is used but its identity is not disclosed, the die is cast.

* Gavin Ellis, a former editor-in-chief of the New Zealand Herald, is an Auckland media consultant.