Joseph Fernandez analyses a survey of Australian journalists on their use of confidential sources — with some curious and some concerning results. Cartoon by Greg Smith
Do journalists work with ‘sources’? No, according to one respondent in a recent nationwide survey of journalists. The 42-question survey drew 154 illuminating – some curious – responses. In response to a question on what influences the making of a confidentiality promise, one answered: “I don’t work with sources.” And, to a question that reads ‘Are you aware of the penalties for withholding information from the police, other investigating authorities and the courts?’ the responses included “Pretty much tell them to stuff off” and “But I don’t care, sources are protected”. As for being aware of the penalties, 25 per cent (of 146 respondents) said they were not aware in relation to the police and other investigating authorities, and 19 per cent were unaware in relation to the courts.
The author conducted the survey between August and October 2014, and the responses included partial completions, with 30 follow-up interviews with respondents and senior journalists, including editors. The Media, Entertainment and Arts Alliance Media Section was the main survey distributor, while a selection of large media outlets, including the ABC, The Australian, The Sydney Morning Herald, The Age and The West Australian also helped with distribution. The survey’s broad themes covered participants’ general profile; familiarity with shield laws; when, on what terms and to whom confidentiality was promised; the processes governing such undertakings; perceptions of shield law’s effectiveness; concerns about official surveillance; and perceptions on outcomes from confidentiality promises. Here are some of the key findings.
Shield law familiarity
The general lack of understanding of shield laws among journalists stood out. A whopping 75 per cent (of 154) were ‘uncertain’ if they were covered by shield laws, 29 per cent had ‘no understanding’ and 62 per cent had ‘some understanding’. Only 10 per cent had a ‘good’ or ‘excellent’ understanding.
MEAA’s media section communications manager Mike Dobbie said: “There doesn’t seem to be a very good understanding of what shield laws are, how they work, how they apply, and who they apply to.”
Former ABC Media Watch presenter and now columnist with The Age Jonathan Holmes said: “It is rather shocking that there is such widespread ignorance as to whether a shield law exists, let alone knowing how it works, which itself is pretty complicated.”
The Age editor-in-chief Andrew Holden said: “For most journalists, certainly those in larger organisations, there is probably a reliance on legal advisers, and journalists ask themselves ‘Do I have to know the ins and outs of my local shield law when I have lawyers who will step in?’”
When and on what terms promises are made?
Respondents’ answers were puzzling, with 19 per cent (of 108) saying the terms were ‘not clearly defined but implied from the circumstances’, or that the terms were ‘clearly defined but done orally’ (61 per cent). Only 12 per cent said the terms are ‘clearly defined and captured on the record’. A staggering 42 per cent (of 104) said it was not always relevant whether the information obtained through a confidentiality promise was available from an alternative attributable source, while 18 per cent (of 147) said they had ‘no understanding’ or only ‘some understanding’ of the terms on the record, off the record and background information.
Dobbie said: “From MEAA’s perspective, that is probably a bit disconcerting… If journalists can’t answer that question, and it seems that a lot of respondents couldn’t, how then does that translate to your understanding of confidentiality and the obligation concerned?’”
ABC head of editorial policy, Alan Sunderland, said while some journalists assume they have a good sense of what dealing with sources entails, “when it comes to the controls, risks or limitations they face they generally have only the vaguest of understanding. That was the biggest feature of the findings.”
Editor of The Australian, Clive Mathieson, said: “The best practice for journalists remains to get sources on the record wherever possible and, where that is impossible or ill-advised, be sure you are doing the right thing, that your story is in the public interest and your source worthy of protection. Until proven otherwise, you can’t rely on the courts or the code of ethics to protect your sources.”
A sizeable 73 per cent (of 108) said sources claimed they would face adverse consequences if the confidentiality was breached, and 72 per cent said the source made a confidentiality promise a condition for releasing information, while 69 per cent said the magnitude of a story from a public concern perspective was a factor in considering a promise. The vast majority (85 per cent of 74) said they followed the MEAA code – even those employed by media organisations. Other codes cited were the ABC, Fairfax, News Corp, Age and IFJ codes. Surprisingly, given that major media organisations were covered in the survey, 57 per cent (of 134) said their organisation had no rules ‘specifically’ for confidential sources. Follow-up interviews showed that some journalists were unaware of their employer’s rules. Sunderland said: “There are some big messages out of this… the more you can overtly confront and examine these issues in the workplace the better.”
Processes governing promises
While 22 per cent (of 134) said they alone made the decision whether to honour the confidentiality undertaking and publish without identifying the source, triple that number said they alone were ‘best placed’ to decide whether a source should be protected. Only 15 per cent said the line manager or supervisor was best placed to decide. Asked who else in the organisation had the right to know the confidential source’s identity, 32 per cent said ‘noone else’; while the others who figured prominently as having the right to know were a subeditor, editor, managing editor and legal adviser. Notably, 11 per cent said they ‘often’ or ‘always’ felt unable to comply with the requirement to reveal the source identity to another person in the organisation. The remaining 69 per cent said they ‘never’ or only ‘sometimes’ felt unable to do so, while 20 per cent were neutral.
Dobbie said: “Does the source know that all these people are going to be told?”
Perceptions on shield law effectiveness
Unremarkably, 96 per cent (of 95) said it was ‘extremely important’ to be able to provide strong protection for confidential sources. As to how such protection should be provided, 77 per cent said ‘through a professional code of ethics that you can show binds you’, while 40 per cent said protection should be provided through the employer’s rules, 72 per cent through law made by parliament, and 51 per cent through court decisions. Only 34 per cent found the present state of shield law ‘totally inadequate’, while 65 per cent said it was ‘somewhat adequate’.
The long answers accompanying this question indicated that some respondents did not understand shield laws (‘to be honest, I don’t know what they are’; ‘not qualified to answer’, ‘not sure’, ‘I don’t know anything about existing laws, didn’t even think we had any’); or unrealistically favoured absolute protection (‘total protection required’, ‘absolute protection should be guaranteed’, ‘police should under no circumstances be able to raid media offices, nor courts demand any information’); or justifiably wanted the rules to be ‘uniform, more clearly defined’, and ‘national’. Asked what you would do if it were entirely up to you to introduce shield laws, 59 per cent advocated ‘absolute protection’, while 35 per cent would retain the qualified protection with a presumption against disclosure. Answering a related question, 41 per cent (of 93) said shield law should ‘protect confidential sources only when the confidentiality is justified’.
The Age, whose award-winning reporters Nick McKenzie and Richard Baker faced a pursuit of their confidential sources, was able to block it by relying on shield laws. Editor-in-chief Holden said: “Shield law helps but it is not the solution to all our problems because, quite frankly, the law of defamation is a more real and daily threat to journalism.”
A deep divide emerged to the question Who should shield law cover? Participants were asked to choose from a list: ‘all journalists, in any circumstance, regardless of whether they can show that they are bound by a recognised code of practice’ (24 per cent of 93); all journalists including citizen journalists, bloggers and others who produce journalistic content (18 per cent); all journalists as long as the content met a journalistic code even if it did not bind them (32 per cent); only those who practice journalism for a living (18 per cent); and only able to show they are bound by a recognised journalistic code (39 per cent).
How a ‘journalist’ should be defined drew a similarly varied response: 45 per cent (of 93) would limit ‘journalist’ to a person who works in an organisation with a news and current affairs function; the person is not strictly a journalist but the work concerned is ‘journalistic output’ (38 per cent); and the person belongs to a professional journalism body with a professional practice code (48 per cent). Dobbie said: “Let’s stop trying to label the individual and try to label the subject matter at hand, the journalism.”
Concerns about official surveillance
In response to questions on arguably the most serious contemporary challenge to journalistic sources – official surveillance – respondents provided a mix of answers, some of them curious. Many (41 per cent of 95) were ‘not concerned’ or ‘a little concerned’ or ‘neutral’ about official surveillance of their communications. Less than one third (31 per cent) were ‘very concerned’ while 27 per cent were ‘generally concerned’. As to concern about the prospect of an official raid at home or work that would identify the source, only 14 per cent (of 108) said ‘often concerned’ or ‘always concerned’. The rest were ‘not concerned’ (46 per cent), ‘sometimes concerned’ (22 per cent) or ‘neutral’ (18 per cent).
These responses supported feedback elsewhere in the survey and through interviews that some journalists did not consider their work ‘controversial’, altogether avoided confidential sources, or simply underestimated source disclosure threats.
As to what actions journalists took to safeguard their sources and materials, 6 per cent (of 108) said they took ‘none’, while others said ‘do not record identifying information’ (36 per cent), ‘keep the materials at my workstation’ (15 per cent), ‘keep the materials at home’ (26 per cent), ‘avoid using the telephone to communicate with the confidential source’ (31 per cent), ‘avoid using email’ (62 per cent), and ‘avoid using any form of traceable record of communication with the source’ (38 per cent).
Dobbie said: “Since the survey we now have a whole new regime of national security laws which are imposing to a far greater extent, or threatening, that beyond the journalist’s best wishes, that information can be discovered.”
Sunderland said: “…new laws are coming in all the time, for example, the foreign fighters law, intelligence law, data retention law – it’s constantly upping the ante on journalists.”
Perceptions on outcomes
Interesting, although not surprising, were the responses to the question asking respondents to rate themselves and other journalists on the over-use of confidential sources. Respondents rated themselves more favourably on whether they ‘over-used’ confidential sources – 57 per cent (of 94) said they ‘never over-used’ confidential sources, and gave other journalists 16 per cent for this criterion. As to whether they ‘sometimes over-used’ such sources, they gave themselves 12 per cent, and gave other journalists 50 per cent. As to whether they ‘often over-used’ such sources, they gave themselves 1 per cent, and other journalists 12 per cent.
The “tell [the police] to stuff off” comment mentioned earlier may be less about foolhardiness and more about a journalist’s quintessential resoluteness to protect a source regardless of the consequences to themselves. As Holmes observed: “That’s what MEAA tells you to do, although not in such crude terms. But that there could be consequences is something you would think every journalist would be aware of. But not all are.”
Brisbane Times editor-in-chief Simon Holt said many journalists don’t have the same urgency towards shield laws as others. “It doesn’t surprise me at all because there are so few journalists doing good investigative work, that there will be a lot of journalists who are not interested in shield law,” he observed.
Mathieson said: “Shield laws are a useful part of the media’s legal armoury but, as their application remains largely untested in the courts, it’s still unclear how much protection they would offer… the differing qualifications, definitions of journalists, informants and the discretion given to the judiciary under the various state and federal laws make it hard to assess at this time their impact on free speech.” This study clearly highlights the importance of education in this area.
Dobbie added: “The main point about what the survey has raised is that there can be areas of improvement in terms of the education of journalists… The survey has been great in getting respondents to talk about shield laws and to explain their understanding of them.”
Many questions remain, of course, on the lessons to draw from this survey, but the present groundwork provides ample grist for identifying future education, law reform and professional practice directions.
Associate Professor Joseph Fernandez is the head of the journalism department at Curtin University and is the author of Media Law in Australia – Principles, Pitfalls and Potentials (2014). The author gratefully thanks everyone who took part in the survey or supported it
Greg Smith is a cartoonist for The Sunday Times.