The importance of keeping sources secret

Opinion Uncategorized

A critical examination of the importance of protecting sources and keeping them out of the hands of "dark actors".

The row over who was to blame for the death of Dr David Kelly last Thursday has largely centred on one question: Should the BBC have named him as their single source for the infamous "dodgy dossier" story?

The answer for all journalists should be an automatic “No”.

Clause 7 of the National Union of Journalists’ Code of Conduct is clear on the matter: "A journalist shall protect confidential sources of information."

The self-regulatory Press Complaints Commission (PCC) also mentions the matter in its Code of Practice, saying: "Journalists have a moral obligation to protect confidential sources of information."

For the outsider, this might seem like hacks simply guarding their own interests – after all, we don’t want our colleagues finding out who our best sources are and stealing them.

The journalist with the best sources gets the best stories. They are our most valuable possession, and we covet them as such.

However, the anonymity of sources is essential not only to the profession of journalism, but also to the preservation of free speech and the scrutiny of power. David Kelly is by now an over-used example, but without him would we have found out about the "sexing-up" of the Iraqi weapons dossier?

If any proof was needed of the importance of Andrew Gilligan’s story then it comes from the government’s extreme reaction.

The story created a need for an independent enquiry into our very reasons for going to war in the Gulf – a matter over which many lives depended.

David Kelly was a government-employed scientist. If it was revealed that he had been undermining the Prime Minister’s case for war in conversation with a journalist, then his future in the role would have been cut short.

So it was vital that the story was reported, therefore it was vital that Kelly was allowed to remain anonymous.

He was hardly likely to spill the beans on the exaggerated claims of Saddam’s weapon capabilities when it would most likely cost him his job, no matter what his moral scruples, the fact that he seemingly committed suicide when the pressure on him became too great affirms this.

Without journalists’ commitment to keeping sources secret, nobody would ever break the silence again.

That is why journalists are afforded protection under British law regarding the identification of sources – if whistleblowers were too scared to pass on information to reporters in confidence; individuals, businesses and governments would be able to get away with whatever they willed without the added scrutiny the press – or fourth estate – provides.

In some cases, it is far more than jobs at stake when people talk to the press.

Sources close to terrorist or criminal organisations endanger their lives every time they reveal information to journalists.

There can be few journalists willing to put people’s safety at serious risk when pressed to disclose sources, but it is cases like this that normally command the most publicity and the most pressure on the journalist in question.

Judges will normally accept the journalist’s need to protect his or her source(s) and tales of reporters and editors being jailed for refusing to name names are somewhat exaggerated, the last example in this country being in 1975.

But in cases of national security, for instance, journalistic rights to withhold information are limited and moral issues become blurred.

In these cases a journalist might be tempted to forego the golden rule of their trade in order to see a criminal brought to justice, but one should always consider the wider picture when tackling these dilemmas – if you expose one source to identification, your reputation will be tarnished and other potential sources are unlikely to trust you in the future, taking us back to the early point about sources being our most prized possession.

If a large amount of journalists start betraying sources, the profession as a whole will be damaged as no-one will want to talk to us (the NUJ recently took the unusual step of expelling one of its members for this very reason).

Giving up a source may well help convict one deserving criminal, but in the long-run it could prevent the exposure and investigation of many more.

So journalists should be in no doubt they have a duty to themselves and their fellow professionals – not to mention the sources themselves – to protect sources whatever the circumstances.

But what protection do we have under British law should a judge order us to reveal a source?

A number of cases through the years have shaped the law’s current stance on source confidentiality, but many journalists still feel there is too little protection.

In the 1970s, the Sunday Times took a case to the European Court of Human Rights when a British court ordered it to "de-mask" a source, a command that was found to be an infringement on the freedom of expression.

As a result, British law was adjusted to state that journalists could only be forced to divulge confidential information for one of three reasons:
  • The protection of national security
  • The detection or prevention of crime
  • The interests of justice

(Contempt of Court Act 1981, section 10)

As with most things in law, these criteria leave much room for manouver and judges still tend to try and identify sources.

In the 1990s, another key case gave journalists more protection.

when Bill Goodwin was ordered to disclose his source for an article he wrote for Engineer magazine he took his case to the European court and was successful in keeping his source secret.

The European court ruled that when considering cases concerning the identity of sources, UK judges should balance the need to reveal sources with the importance of maintaining freedom of expression.

Another defence that journalists protecting their sources may argue in court – particularly if the judge’s willingness to force you to reveal your source(s) comes under "the interests of justice" – is that the identity of the source is not actually essential as long as the information they passed on is reliable.

In his evidence to the select committee on June 18, Andrew Gilligan said: "I have described him [David Kelly, at this point still unnamed] as one of the senior officials in charge of drawing up the dossier and I can tell you that he is a source of longstanding, well-known to me, closely connected with the question of Iraq’s weapons of mass destruction, easily sufficiently senior and credible to be worth reporting."

Under oath, a reporter would be able to argue that as long as a satisfactory amount of detail was given about – but without actually naming or identifying – the source, then the information provided by this source would be worth taking into account, without the need to know who the specific source was.

Obviously, this would only work in cases where the identity of the source was not a key issue.

With regard to notebooks and other such materials that could identify a source, it should be remembered that the police cannot seize these without an order from a Crown Court, which can be challenged by the journalist before the seizure takes place.

The same applies to photographic negatives and computer files.

It should also be remembered that it is an offence to destroy, dispose of, or make unobtainable any such materials after an initial request has been made by the authorities.

Despite the protection afforded to journalists under law, unions argue that the rules should give us even more safety.

Judges will still be inclined to try and force the identification of sources based on flimsy evidence if it will make their lives easier, but as this is such an important issue for most journalists, unions and employers will always be keen to offer support to anyone who finds themselves in this position.