Protecting anonymous sources: an ethical dilemma

Bob Woodward (Robert Redford) talking to his anonymous source, Deep Throat, in All the President’s Men

Journalists have a moral obligation to protect their confidential sources of information.

This is article 15 of the Press Complaints Commission but, more importantly, it is the most sacred principle of our profession. A deontological duty which, in the UK, is clearly asserted by article 7 of the National Union of Journalists.

To the NUJ, the rule is simple: not protecting a source is always wrong. A problem arises when this ethical duty should be applied in practice, possibly under the constraint of justice.

In fact, in many European countries journalists are vulnerable to the attention of judges and police officers. In the UK, section 10 of the Contempt of Court Act (1981) states that disclosure is “necessary” in three cases: in the interests of national security; in the interests of justice; for the prevention of crime and disorder.

It is clear that these three “exceptions” offer a rather wide range of occasions in which a court can order a journalist to reveal their sources and/or turn over their notes and recordings. If they refuse, they will be found guilty of contempt of court and fined — or even sent to jail.

It does not happen often, but it has happened.

In 2001, Vanessa Leggett, an American freelance, went to prison for 168 days after she refused to disclose her source on a murder case.

“For the government and the press to do their jobs, they have to promise people confidentiality. To ask the government or the press to violate that makes their jobs impossible”. Vanessa Leggett

In 2006, a videoblogger, Joshua Wolf, refused to supply an American grand jury with the tape of an anarchist protest during which a police car was burned. After 226 days spent in jail, Wolf finally agreed to turn over the videotape.

In 2009, an Irish journalist, Suzanne Breen, was ordered by the police to reveal her sources on an article about an IRA massacre. She refused and went to trial, which she eventually won.

Leggett, Wolf and Breen acted with courage, but not everyone has been so brave. In 2003, Nick Martin-Clark, a British freelance reporter, revealed to police the source of one of his articles and testified against him in court. The source, a prisoner named Clifford George McKeown, was convicted of murder and sentenced to 24 years.

Clark was expelled by the NUJ, entered a protection programme and never worked as a journalist again. He later wrote a defence for the British Journalism Review, When a journalist must tell, where he declared that “the principle of confidentiality, important though it is, is not an end in itself but ultimately a means to disclosure which must remain for journalists our primary purpose”.

I do not blame Martin-Clark for his decision, as he seemed convinced that “there was a clear public interest in solving a murder.” I also understand that such situations surely expose journalists to a hard ethical dilemma.

However, I believe that acting as Martin-Clark did would endanger me and my source in various ways, compromising my work as a reporter and exposing me (and him) to possible criminal retaliations, as Breen’s case has shown. Most importantly, it would endanger the public interest: reducing public trust towards the press and so discouraging other people who may wanted to become a source (informers, whistleblowers etc) from cooperating.

Pulitzer prize winner Alex Jones pointed out that those are “two conflicting but legitimate values, the journalistic value and the investigative one”. But journalists are not detectives. Prosecutors or the police can get the piece of information they want without forcing journalists to reveal their sources.

Even if my meetings with Mr X were to be eventually exposed, and so his/her identity, either by police officers during the trial, or by another journalist, my agreement would be intact, and so my professional reputation — as well as my moral integrity.

Furthermore, my refusal to testify would not impede the court’s ability to do justice in the case. On August 2014, the Khmer Rouge Tribunal condemned Pol Pot’s second-in-command, Nuon Chea, for crimes against humanity. The sentence came although journalists Thet Sambath and Rob Lemkin refused to hand over the uncut interviews conducted with Chea for their documentary, Enemies of the people.

Thet Sambath interviewing Nuon Chea

To summarise, the European Court of Human Rights repeatedly found that English law fails to give adequate protection to journalists, breaching art. 10 (Freedom of Expression) of the Human Rights Act. Although it is true that in the UK there is no protection if the law demands disclosure about a source, I personally believe that this is an instance of telling right from wrong, and it has little to do with what the law has to say.

It is a matter of principle.

For this reason, confidentiality is a sacred bond that should never be broken.