IPSO Blog: The future of confidential sources

Director of Operations Charlotte Dewar on the changing context of Clause 14 and the evolving obligations of journalists and news organisations to protect sources.

The Editors’ Code of Practice Committee is currently considering submissions made to the recent Code Review consultation. It’s an important process – the Code needs regular review to ensure that it engages with evolving ideas about what it means to be an ethical journalist.

Even familiar provisions take on new meanings as the context in which they are applied changes. A recent report published by the Institute of Advanced Legal Studies (IALS), Protecting Sources and Whistleblowers in a Digital Age, highlights an important example  source protection. (Thanks to the Press Association Media Lawyer newsletter for bringing it to my attention!)

The protection due to confidential sources is recognised in Clause 14 of the Code, and has been included since the Code’s first edition, 25 years ago. It is unique among the clauses in that it contains no exhortation or prohibition. It simply states the principle: Journalists have a moral obligation to protect confidential sources of information.

IPSO receives few complaints that cite Clause 14, even fewer that genuinely engage its terms, and fewer still that prove to be breaches. In fact, IPSO has not upheld a single complaint under Clause 14.

So far as I can see, the last complaint to be upheld under Clause 14 was a Press Complaints Commission case related to an incident in 2009 in which the Oxford Mail inadvertently named a reader as the author of a letter, intended for anonymous publication, about his working conditions.

The few complaints that IPSO has considered on this subject have tended to relate to disputes over whether a source was a confidential source at all. In Romeo v Enfield Advertiser, the Committee ruled that a source’s request to discuss the contents of an article before publication (to which the newspaper did not agree) did not make her a confidential source, and the decision to publish the article without providing her with an opportunity for copy approval did not raise a breach of Clause 14. 

In Wadhams v The Times, there was a dispute about whether material provided by the complainant during a telephone call on an “off the record” basis had been published. The complainant also said that the journalist had failed to make good on a promise not to publish the material before speaking to him again. A recording of the call by the journalist demonstrated that none of the material provided during the off the record portion of the call had been published.

The Committee described the failure of the journalist to speak to the complainant again as “regrettable”, but deemed it did not represent an undertaking by the journalist not to publish material without the complainant’s consent, or amount to an agreement to respect the complainant’s confidentiality.

No doubt we will continue to get complaints about who is and isn’t a confidential source, but the IALS report may foreshadow a new sort of complaint: about what exactly is meant by “protection”, and how far this moral obligation extends.

This, of course, is not a new issue, but the report’s authors, Dr Judith Townend and Dr Richard Danbury, make a compelling case that it is an increasingly urgent one.

They also urge journalists and news organisations to take seriously their evolving obligations to protect sources, which includes being aware of the various means they have to communicate with those sources.

They discuss the benefits and shortcomings of various technologies, from the postal service to encryption. Discouragingly, they report a consensus among those they consulted that “guarantees of complete protection of anonymity were highly unlikely to be achievable in a digital era… everyone leaves digital footprints, everywhere”. 

But one can still try, and indeed there is a moral obligation to do so. For those who are facing these dilemmas on a daily basis, the report should make for interesting reading, as would a more detailed review of information security for journalists produced by the Centre for Investigative Journalism.

I don’t think we will see a day soon when IPSO’s Complaints Committee will uphold a breach of the Code on the basis that a journalist communicated with a source via Dropbox rather than Snapchat, or the other way round. But IPSO will continue to be aware of the context in which it operates when considering any concerns that confidential sources have not received the protection they are due and need in order to make disclosures that benefit all of us as members of the public.