It may not have been the slam dunk that journalists in their secret hearts want whenever the confidentiality of a source is at stake, but The Globe and Mail won an important test of press freedom last week at the Ontario Court of Appeal.
The ruling does not have a superabundance of ringing endorsements. It makes clear that, in the court’s view, other important public interests beyond press freedom were at stake. The media should not be making absolute promises of confidentiality that the courts might overturn, the court warned. Individuals who try to exploit anonymity for malicious reasons – to give false and harmful information – should consider themselves on notice.
Fair enough. That was already the state of the law as set out by the Supreme Court of Canada – which did serve up some ringing endorsements. But in the end the Ontario appeal court, citing those endorsements, said that “the public interest in free expression must always be weighed heavily in the balance.” And those words should and do ring out.
The case involved a Globe report based on a confidential source discussing negotiations around a possible $35-billion leveraged buyout of BCE in 2008. An investor, Jeffrey MacIntosh, holder of the Toronto Stock Exchange Chair in Capital Markets Law at the University of Toronto Law School, lost $36,000 by undertaking certain actions after reading the story. He demanded The Globe reveal its sources to help him pursue a possible class-action lawsuit against BCE for allegedly violating Ontario securities law.
The court called it a “difficult case.” “Upholding the privilege [of journalists to protect confidential sources] might be seen to result in the harm of providing deal insiders with comfort they are able to provide secret information to journalists in order to manipulate the markets and avoid accountability by sheltering behind impenetrable journalist-source protection.”
So there was a public interest on both sides. There often is, but in the very recent past the public’s interest in the protection of sources could be trivialized, diminished, forgotten. No more. Journalists sometimes need to draw on confidential sources in the public interest, and that need now weighs heavily in the balance.