How the Globe Got It Wrong

A recent Globe and Mail editorial on a Supreme Court ruling regarding the protection of confidential sources shows the paper's bias against non-traditional media.

It was fascinating to read the Globe and Mail's editorial board crow over its "victory" last week regarding the protection of confidential news sources.

"Standing up for newshounds!" screamed the headlines, with a bold opening paragraph proclaiming:

The Supreme Court of Canada demonstrated respect and understanding on Friday for news reporting that depends on confidential sources. It set an appropriately high bar for judges who may wish to order journalists to reveal those sources, in civil or criminal cases. The court has in effect given the organized news media the tools to do investigative journalism in the public interest [emphasis mine].

Organized media, and only organized media has been “given tools” to protect the public interest? Cue the self-congratulatory text that plays into the trope that traditional news media is essential for democracy: “In an era in which every blogger is a self-proclaimed journalist, the court clearly puts great stock in the organized media's ability to probe behind the closed doors of powerful institutions” [emphasis mine].

So the Supreme Court has ruled: Only journalists for the big news companies are real journalists who can enjoy the protection of the court. This, if it were true, would be really big news. The ruling however, is not this cut-and-dried. It provides no real new tools; the Globe's lawyers extracted little from the courts in the form of new protections; and the protections that do exist exist for everyone, not just journalists.

But all of this isn’t even the real problem.

The real problem is the Globe's editorial is misleading. At best it lures Canadians into believing that traditional news media companies enjoy (new) free speech rights that are special and unique to them. At worst, the piece suggests the editorial board does not want to expand free speech rights for all Canadians but only for a limit and narrow few. They want the law to give the large established media players a monopoly the printing press once did. To return to a society where elite sanctioned "creators" who talked about the news were separated from "consumers" who passively absorbed it. Newspapers should be interested expanding everyone’s freedom of speech not attempting to cast the law as a restrictive force whose benefits are enjoyed by only a few to confer monopolies. It's a dark perspective for the country's leading editorial board to have.

So if the Globe has it wrong, what does the ruling really mean?

The general consensus of the lawyers that I’ve talked to is that the ruling is really a draw, not a win for the media. Very little has changed. Before the ruling, determining if a confidential source deserved to be protected was up to the courts, which used the four-part Wigmore framework to make their assessment: 1. The relationship must originate in a confidence that the source’s identity will not be disclosed; 2. Anonymity must be essential to the relationship in which the communication arises; 3. The relationship must be one that should be sedulously fostered in the public interest; and 4. The public interest served by protecting the identity of the informant must outweigh the public interest in getting at the truth.

Nothing about this case changes these basic facts. Courts, not the media, continue to determine if a source should be confidential, and the criteria have not changed. In short, the media has not been “given tools.” It has essentially the same tools as before.

Indeed, this case is at best a draw (albeit an important one) for the Globe's lawyers. This is because they were arguing for new and special rights, specifically the recognition that "the basis of the journalist-source privilege is a constitutional one." In short, they wanted the court to state that journalists have an inherent right to protect sources in the same way lawyers have a special solicitor-client privilege and medical doctors have a doctor-patient confidentiality privilege. However, the court stated that it was unprepared to “throw a constitutional immunity around the interactions of such a heterogeneous and ill-defined group of writers and speakers and whichever ‘sources’ they deem worthy of a promise of confidentiality and on whatever terms they may choose to offer it.”

That's not a victory, it's outright defeat. Indeed, the court doesn't even think journalists are a group with any unique rights, as it “also rejected the existence of a class-based privilege, on the basis that there is no formal accreditation or licensing process for journalists in place, as there is for lawyers for example, and no professional organization regulates the profession and maintains professional standards.”