The Supreme Court of Canada has sent a strong message to judges, warning them that journalists should be ordered to identify confidential sources only in rare circumstances -- especially the sources behind important public-interest stories. In an Oct. 22 ruling, the court overturned an order compelling Globe and Mail reporter Daniel Leblanc to answer questions, as part of a civil action, that could identify a key source consulted for his investigation of the Quebec sponsorship scandal.
As it did earlier this year in a similar case involving the National Post, the court refused to give journalists a blanket right to protect sources. But it stressed "the high societal interest in investigative journalism" and said journalists should be forced to name sources only when the information is "vital to the integrity of the administration of justice." The court also overturned a publication ban that prevented the Globe from reporting on the federal government's civil action to recover money paid to a Quebec aid firm.
The Quebec courts have been directed to reconsider what Leblanc should be asked to reveal, after weighing the importance of his evidence to the civil case against the public interest in protecting sources of news stories on important public issues.
The Grand Chamber of the European Court of Human Rights in Strasbourg ruled that a Dutch law allowing a prosecutor to order journalists to divulge sources was in violation of Article 10 of the European Convention on Human Rights, which protects the right to free expression.
The test case concerned an order demanding that a Dutch magazine, Autoweek, hand over pictures of an illegal car race. The magazine's editor was arrested after refusing to comply.The Strasbourg court, ruling against the Dutch government, awarded 35,000 ($47,000 Cdn) to the magazine's then-publishers, Sanoma Uitgevers B.V.
In response, the Dutch justice ministry said it has prepared legislation that
will expressly allow journalists to protect sources, the BBC reports.
Justice Dougald McDermid of Ontario’s Superior Court of Justice prohibited the media from reporting what happened when Terri-Lynne McClintic, one of two people accused of the eight-year-old’s 2009 abduction and murder, was scheduled to appear in court in Woodstock. The Globe and Mail ran a front-page editorial on May 1 calling the ban “absurd” and “a danger to Canadians.”
The Toronto Star said it will challenge the scope of the temporary ban and warned in an editorial that “rumour and innuendo will replace solid reporting” if it stands. Star columnist Rosie DiManno says the ban “cheats Canadians” who have a right to follow the high-profile case, and underlined her point in another column in which the banned information was blacked out. Meanwhile, Ontario’s NDP justice critic and media law experts contend the ban goes too far and flies in the face of the Charter’s guarantee of press freedom.
The Supreme Court of Canada’s refusal to protect the National Post’s confidential source and grant constitutional protection to all journalists’ sources is “disappointing,” writes Toronto media lawyer Brian MacLeod Rogers. But the door is open to future privilege claims and the court has clearly recognized the importance of confidential sources to investigative journalism and the public’s right to know. Read his analysis of the ruling and its implications:
Don't let the negative headlines get you down – there’s good news for journalists in the the Supreme Court of Canada’s May 7 ruling in the case of the National Post, its former reporter Andrew McIntosh, and the possibly forged document at the heart of a nine-year legal battle to protect a source. Law section editor Dean Jobb reviews the ruling and what it means for journalists:
The new responsible journalism defence has helped an Ontario news website defeat a libel action launched by a man named in a police fraud alert. In one of the first applications of the defence (created by the Supreme Court of Canada in 2009), a jury ruled SooToday.com acted responsibly when it published the alert, even though it contained erroneous information about a man with a criminal record for fraud.
The case shows that journalists must make serious efforts to verify a story before publication, in order for the defence to apply. SooToday, an independent web-only news outlet in Sault Ste. Marie, consulted more than 20 sources, commissioned an independent accounting analysis that cast doubt on the man’s investment scheme, and made efforts to locate him for comment.
Read the SooToday.com story on the case.
Edited by Thomas Rose
The Law Section is a clearinghouse for news, information, advice and commentary on matters of law of importance to journalists and to anyone with a passion or just a curiosity about the issues of our times.
Thomas Rose lectures in law and journalism at Wilfrid Laurier University. His research interests include journalism and democracy, international criminal law, and freedom of expression.
Thomas has published in various peer-reviewed academic journals and has an LL.M in International Law from Leiden University and a Masters in Studies of Law from Yale Law School. He is also an award winning journalist. Thomas has worked in public and private media for more than two decades as a Reporter, Senior Producer, Executive Producer, and Project Manager on national, regional and international multi-media projects. His work has taken him to Ghana, Italy, Northern Ireland, Vietnam, Russia, South Africa, and the United States. From 2006-2010 Thomas provided commentary and analysis on global affairs and legal issues for CBC online.
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