It was completely 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.]

Wow, organized media has been *given tools* to protect the public interest? Yes! (According to the G&M…) Well, if this is true… Cue self-congratulatory text that plays into the trope (and myth) 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.]

The Supreme Court – again, according to the G&M – has ruled. Only journalists for the big news companies are real journalists that can enjoy the protection of the court.

This, if it were true, would be really big news. It might even justify such self-congratulatory rhetoric. The ruling however, is not this cut and dry. In truth, 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.

As a result, what is really disappointing about all this is that the Globe‘s editorial is at best misleading, attempting to lure Canadians into believing that traditional news media companies enjoy rights that are special and unique to them (and further, implies those rights are new). At worst, the piece suggests the editorial board clings to a world before the web – confined to an outdated worldview where “creators” who could legitimately report on or talk about the news were separated from “consumers” who passively absorb it. Previously, this worldview was made possible by the technology of the printing press, which kept production in the hands of a few; now that publishing is available to virtually anyone, the Globe‘s editorial board seems interested in finding a new way to limit this freedom – when they should be expanding it – by attempting to cast the law as a restrictive force whose benefits are enjoyed by only a few (them) and not everyone (us). It’s a dark perspective for the country’s leading editorial board to take.

Intrigued? I hope so, because what the ruling did say matters.

So what did the ruling say and what does it actually mean? Let’s look closer.

This Was a Draw, Not a Win.

Conversing with the eaves.ca legal team*, the consensus is that the ruling is a draw, not a win for the media. Very little has changed. Prior to the ruling, ascertaining if a confidential source deserved protection was up to the courts who 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 this framework. 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 “new” tools. Essentially the same tools as before apply.

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 other words, they wanted to court to state that journalists have an inherent right to protect sources in the same way lawyers have a special solicitor-client privilege or medical doctors have doctor-patient confidentiality privilege. However, as the decision states:

the Court was unprepared “[t]o 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.”

Ouch. 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.

But that’s not it. On the fourth Wigmore criteria – the question of public interest – the Globe‘s lawyers also wanted the onus to shift to the party seeking production/testimony. In other words, to keep a source secret it shouldn’t be up to the Globe to persuade the courts that the story IS in the public interest, but up to the other party (person, corporation and government) to persuade the courts that it ISN’T in the public interest.

But the court did not agree with this request either:

The Court rejected this argument. Given that the evidence is presumptively compellable and admissible, the burden of persuasion remains on the media to show that the public interest in protecting a secret source outweighs the public interest in criminal investigations. The Court ultimately concluded that every claim to journalist-source privilege — be it in the face of testimonial compulsion or the production of documents — is situation specific, with the public’s interest in the freedom of expression always weighing heavily in the court’s balancing exercise. [my bold/italics]

Strike two.

So, to recap so far: First, the court has not made journalists a special class.  We all enjoy the rights to publish content and if that content were tested legally, the Wigmore framework would be applied to our sources. Second, the court essentially preserved the Wigmore test, so it has not “given media the tools”; it has simply preserved and reaffirmed the tools that already existed. Essentially the courts mostly sustained the status quo that existed before the lower court upset the apple cart.

I don’t want to belittle this outcome. This is an important victory for all Canadians as it preserves everyone’s ability to engage in investigative journalism if they so choose.

So what’s with the language in the Globe‘s editorial? Why claim a big victory and dump on bloggers? What you are really reading is a lot of spin. Which is part of what makes the editorial so frustrating – I hold the editorial board to a high standard, and I expect them to not spin stories, especially about themselves and a subject as serious as freedom of speech.

So let’s unpack that spin…

Mixed Messages

The first is the effort to qualify the victory.

As we previously saw, the Globe‘s lawyers argued that journalists should be a protected class and journalist-source relationships should enjoy constitutional protection. As we also saw, however, the Supreme Court did not agree. But look at the quote from the piece below:

“Bearing in mind the high societal interest in investigative journalism, it might be that he [Mr. Leblanc] could only be compelled to speak if his response was vital to the integrity of the administration of justice.” That is a high bar, indeed. The protection of sources should never be absolute, but the Quebec Superior Court will have to give it full consideration, in light of the important public interest at stake, when it ultimately decides the matter.

So first, the bar did not really move. Yes, the court overturned the lower court, but it essentially re-affirmed the Wigmore framework. Again, this is great news, but this is something preserved, not gained.

But more intriguing was the editorial board saying that the protection of sources should never be absolute. A constitutionally protected journalist-source relationship either is absolute, or if I understand it correctly, pretty close to absolute. So why say it shouldn’t be absolute when this is what your legal team was essentially asking for? One suspects that had the court given journalists a special, constitutionally protected relationship with sources (which really would have demanded a dramatic editorial) than the paper would have argued that the journalists sources had finally achieved the absolute protection they so richly deserve and need.

Burying the Lead

But what is particularly interesting about the Globe‘s editorial piece is its treatment of pretty much everyone who isn’t employed by the mainstream media. The entire framing of the piece is that this is a win for journalists and the media, even though the court goes out of its way to say they are not a protected or even recognized class.

Indeed the real story is that important rights that belong to all Canadians have been preserved! But that story is buried.

Rather, the Globe seems very keen to divide the country into two groups – creators (that’s them) and (passive) consumers (that’s you).  Coming back to the first quote from the piece, the Globe notes that.

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.

In fact, the court does no such thing. First, the Wigmore framework applies to anyone who publishes. That would include people like myself who blog. That also means you (since really anyone can blog, or tweet, or publish something these days).

Second – and this is where it feels like the editorial board really misleads the public – the court did not put great stock in organized media. Indeed, if anything, it went out of its way to say it put very little stock in it.

The basis of the above line in the editorial is, I presume, this part of the ruling:

Justice Binnie put particular emphasis on the significance of the third and fourth factors [of the Wigmore framework], in the journalist-source context. The third factor, whether the relationship is one that the community should sedulously foster (para. 57), introduces a certain degree of flexibility in the evaluation of the different types of sources and different types of journalists. He suggested that whether the relationship is between a source and a blogger, or between a source and a professional journalist, will impact upon the court’s weighing exercise.

So yes, the credibility of the person will matter. But this also means a fly-by-night newspaper may not enjoy the same protection as an established blogger. But even here the wording is quite conservative – “a certain degree of flexibility” and the difference is “suggested.” This is all pretty qualified, and hardly a sign of the court putting “great stock” in established media.

Of course, what little there is gets watered down even further in the next line of the ruling:

But, according to Justice Binnie, the fourth factor [of the Wigmore framework] does the lion’s share of the work, and the court’s task is to “achieve proportionality in striking a balance among the competing interests” (para. 59).

So the public interest is what really matters – not who (e.g. blogger or newspaper) is seeking to preserve the confidentiality of the source.

In Conclusion

This piece is, in many way, a continuation to a piece I wrote in December after a previous Supreme Court ruling which the court went out of its way to put journalists, bloggers and citizens on a equal footing. In the same vein, my problem with the editorial board’s piece isn’t that they played up the significance of their victory – it is still an important victory. It’s that the piece suggests the victory is the (large) news industry’s to enjoy exclusively (or at least, that we ordinary citizens may only enjoy its benefits through them). This is not the case and it does a disservice to citizens, bloggers and journalists to suggest as such.

The Globe and Mail will likely have a long and illustrious reign as the newspaper of record of Canada – but that reign is more likely to continue if it provides credible insights into both the technological and legal realities of the digital world. This editorial suggests that it does not; and I believe that the country, and the paper, are weaker for it.

*Thank you for those who helped me with the legal legwork on this piece, and for those who’ve stuck through to the end; I know this is an unusually long post.