Column

A Journalist Shield Law for the Provinces

This piece is based on my Parkland Institute report entitled, “Alberta’s Inadequate Legal Protection of Whistleblowers, Journalist Sources and Others Who Speak Out in the Public Interest.” The report is expected to be published online later this year.

A person who wants to blow the whistle on wrongdoing in our society has a lot to worry about. On the legal front, they may lose their job or be sued. Whistleblower protections in Canada, which extend only the public sector employment, are poor. Moreover, only three provinces have anti-SLAPP legislation. Most choose to feed a tip, leaked document, or their first hand information to a journalist on a confidential basis, i.e. the journalist will not disclose the identity of her source.

In some North American jurisdictions, this confidential relationship is protected through a journalist shield law. The general purpose of these laws is to encourage whistleblowers to come forward on the assurance that a court will not order their identity to be revealed. The competing public interest consideration in such laws is when – if at all – courts should reveal the identity of a source in the interests of furthering a criminal investigation, or in the civil context, to help a would-be plaintiff initiate a lawsuit.

At the federal (and criminal) level, the recently-enacted Journalistic Sources Protection Act (JSPA) uses an interest balancing approach with the onus the on Crown, or would-be plaintiff, to show that the public interest in revealing identity (or obtaining evidence) outweighs the chilling effects on sources coming forward. This should mean greater protection for journalist sources.

At common law, courts in this country have favored disclosure by making inferences about the possible importance of the evidence to a criminal investigation while downplaying the possible chilling effects on journalist sources. In this state of affairs, I am skeptical that reversing the onus will make much of a difference.

While the JSPA is not likely to be changed anytime soon, it is striking that no province in Canada has yet to enact a journalist shield law to protect sources against civil claims by plaintiffs. This is perturbing since the common law, as in Alberta,[1] does not necessarily provide any protection.

Most US states, by contrast, have some kind of journalist shield law. New York and California law, for example, absolutely protect journalists from revealing the identify of (or documents related to) a confidential informant.

Many other US states have a journalist shield law located somewhere between a straight up balancing approach (like in Canada where the source and/or her evidence is usually revealed) and absolute privilege which can never be penetrated.

An effective middle way would be some articulation of the test offered by Justice Stewart’s dissent in the US Supreme Court’s foundational case of Branzburg v. Hayes requiring a journalist to reveal her source only if there is:

  • “…probable cause to believe that the newsman has information that is clearly relevant to a specific probable violation of the law;
  • …the information cannot be obtained by alternative means; and
  • [there is] a compelling overriding interest in the information.”

The first notable feature of this test is that it removes much of the speculation associated with a straight balancing test. The information sought must be “clearly relevant” to a “specific probable” violation of the law. Mere speculation that the information sought might assist law enforcement, or a civil plaintiff, in some vague way is not enough. Even then, privilege is to be maintained unless there is a “compelling overriding interest in the information.” This is not a mere balancing exercise but clearly favors confidentiality in all but the most exceptional circumstances.

According to Mathewson, this three-part test in one form or another has been codified into legislation in 32 US states and the District of Columbia.[2] But I think this better approach can be improved upon.

Abramowicz has convincingly argued that the three-part test, as currently formulated, looks only at the public interest in obtaining evidence. The newsgathering interest, on the other hand, is viewed as fixed. He advocates that this interest should be evaluated on the basis of whether proper journalistic procedures were followed in using a confidential source.

Proper journalistic standards includes only using confidential sources for “important” information, attempting to verify it elsewhere, ensuring the information is within the source’s direct knowledge, engaging in deliberation with an editor who knows the identity of the informant and has the newspaper’s credibility in mind, and transparency in explaining why confidentiality was granted to the informant.[3]

In Canada, these guidelines are followed by reputable institutional newsgatherers.[4] More to the point, any shield law should assess the journalistic standards used to check and verify information provided by an anonymous source as part of the inquiry.[5] The stronger the journalistic standards, the more difficult it should be to show that there is a compelling interest that the source, or her evidence, should be revealed.

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[1] Moysa v. Alberta (Labour Relations Board) [1987] A.J. No. 418.

[2] Joe Mathewson The Supreme Court and the Press: The Indispensable Conflict (Northwestern University Press: Evanston 2011) at 109.

[3] David Abramowicz “Calculating the Public Interest in Protecting Journalists’ Confidential Sources” (2008) 108 Columbia Law Review 1949 at 1971-3.

[4] See e.g. CBC Journalistic Standards and Practics https://cbc.radio-anada.ca/en/vision/governance/journalistic-standards-and-practices , and the Globe and Mail editorial standards: https://www.theglobeandmail.com/about/editorial-code/

[5] It is worth noting that Abella J. (dissenting) in National Post suggests that courts should give deference to the professional judgement of ethical journalists. At para. 130: “Where, as here, the journalist has taken credible and reasonable steps to determine the authenticity and reliability of his source, one should respect his professional judgement and pause, it seems to me, before trespassing on the confidentiality which is the source of the relationship.”

Comments

  1. David Collier-Brown

    I think the need for a shield law is substantially greater that one would expect.

    News organizations like the Globe and Mail offer “secure drop”, a service that keeps the reporters from knowing who their informant is, and they specifically advise whistle-blowers to “not contact our journalists in connection with your SecureDrop uploads through any other method, such via social media or email.” [ see https://sec.theglobeandmail.com/securedrop/%5D

    That this level of security is required by newspapers in a free country is more than just surprising. Nevertheless, a recent example from the United States is compelling.

    Reality Winner, a 25-year-old Air Force veteran and NSA contractor was charged with mailing classified material to a news outlet. The material in question was a detailed report on how alleged Russian hackers targeted election vendors with phishing attacks, in an attempt to access voters rolls in several US states.

    We would hope that exposing an attack on Elections Canada would not be considered a secret that only the CSE is entitled to know about, but that clearly is not the case in our own next-door neighbor.

    I, too, would recommend a shield law providing a substantial degree of privilege.

  2. Good points David. Sounds like securedrop is a way for coping with a lack of a shield law, or at least a good one. You can’t reveal what you do not know. The downside is that it is difficult to assess credibility of anonymous sources.

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