Newspapers and their sources: the issue of privilege

by

LEE SU SHYAN

June 22nd, 2007

The Straits Times, 31 May 2007, p. 42 -– THE news was that one company had sued its rival for poaching staff. But what might have been a simple settlement between them spilt over unexpectedly to the media and the practice of relying on unnamed sources for information.

It brought into focus the relationship between reporters and newsmakers willing to give information if they are not named. Last year, the Singapore subsidiary of London-listed international brokerage Tullet Prebon sued US-based BGC International for conspiring to poach 51 of its staff here. Prebon claimed $66.4 million in lost business.

In November, the two firms settled out of court, with BGC agreeing to pay Prebon an undisclosed sum. A short press statement to the effect was released on Nov 24.

On the same day, the wire agency Reuters reported that the settlement amount was “around a fifth” of the $66.4 million. The following day (Nov 25), The Straits Times and The Business Times also referred to the settlement sum, quoting unnamed sources. ST said it was “slightly less than half the amount”, whereas BT said it understood BGC would pay “less than half” of what Prebon wanted.

The reports sparked an immediate response on two fronts. BGC claimed breach of confidentiality over the settlement terms. It is now seeking to set aside the amount it has to pay. Prebon countered by accusing BGC itself of breaching the gag on releasing the settlement details.

On Nov 27, lawyers for BGC asked The Straits Times and The Business Times to reveal the identity of their sources. Both said no. BGC immediately took Singapore Press Holdings, the publisher of both newspapers, together with the two reporters who wrote the articles and their respective supervisors, to court to compel the disclosure of the sources as well as other information. SPH engaged lawyers to resist the action.

After considering affidavits filed by both sides, the High Court in January cut down the amount of information that BGC would be allowed to obtain from SPH and its journalists, but it ordered SPH to disclose the source of the settlement amount.

Subsequently, Prebon sued Reuters to find out the source of its information. Last Thursday, the Court of Appeal ordered the Reuters’ journalist to name her source. She did, and the agency said this was only after her source had given permission to be named.

Confidentiality

LAST week’s ruling is significant because it sets a precedent for Singapore in the relatively untested area of the confidentiality of journalists’ sources. In particular, the outcome shows that sources may not enjoy automatic protection under the so-called “newspaper rule”.

The “newspaper rule” is a principle that governs applications against newspapers to disclose their sources. The rule, which has existed for more than a century, arose in defamation cases as it was the first type of case where journalists were asked to reveal their source. But the courts had ruled that the identity of the source was not relevant to whether an article was defamatory, so it need not be disclosed.

This “newspaper rule” has since been used as shorthand for a wider principle recognising journalists’ right to protect their sources in all cases. It has been held and applied in various Commonwealth jurisdictions including the United Kingdom, New Zealand, Hong Kong, Australia and Canada.

But in non-defamation cases, judges may still order disclosure if “exceptional circumstances” can be shown or where it is found to be in the “interests of justice”.

Singapore is not the only jurisdiction to not apply the “newspaper rule”. New York Times journalist Judith Miller went to jail for 85 days in July 2005 for refusing to name her sources to a federal prosecutor examining whether anyone in US President George W. Bush’s administration had illegally leaked the name of Central Intelligence Agency spy Valerie Plame.

After Ms Miller was released, she did reveal her source – the former White House official Lewis “Scooter” Libby – as he had given her permission to do so.

Public interest

IN SINGAPORE, the Reuters case seems to indicate that the confidentiality of a journalist’s sources cannot be protected in certain circumstances.

This raises the question of whether the journalist’s job will become more difficult. In reporting on matters of public interest, journalists do their own research and cultivate newsmakers and experts who are knowledgeable and prepared to provide information which can be used in reports.

Sometimes the sources are not named, or give information on condition that they are not named. In seeking to report the truth, the journalist may need to protect the source.

SPH has said that it wants its journalists to “remain true to the fundamental principles of truthfulness, accuracy, public accountability, objectivity and fairness, as these qualities are critical to discharge their role of reporting newsworthy information to the public”.

That is why, in the Prebon- BGC case, SPH exhausted all options before both newspapers’ sources were revealed. And this remains the company’s stand. ST editor Han Fook Kwang said: “We will try our hardest to resist any attempt to get our reporters to disclose our sources. It has been our long-standing policy that we will not disclose until we are compelled to do so by the court and we have no further recourse.”

Once a judge rules that the source must be named, the decision rests with the individual reporter, the reason being that it is the reporter who will face the legal penalty for refusing to abide by the court ruling, Mr Han said.

“But we will support his decision. If he does disclose the source, it is up to the reporter and we will not hold it against him. If he decides not to disclose, we will also support him, in terms of legal representation and other financial support.”

Looking back at the Prebon- BGC case, Mr Han added: “We fought all the way until the court ordered us to disclose our sources.” External lawyers were engaged and much resources were expended in preparing for the case, he disclosed.

But unlike Reuters, SPH did not take the case to the Court of Appeal. Lawyer Hri Kumar, the Drew & Napier partner who advised SPH, said it was a matter of strategy. “We had already successfully resisted a wider disclosure. If we appealed, we might be inviting an appeal from the other side for a wider disclosure order,” he said.

Looking at the outcome of the Reuters case, he added: “In the end, we made the right call, because the court ruled against Reuters.” Mr Han highlighted another factor that influenced the reporter and the newspaper – the nature of the source.

The ST report in question was a brief article that followed on the press release announcing the settlement between Prebon and BGC. The ST source was in fact someone from a public relations company linked to one of the parties.

Mr Han said: “This was a source familiar with handling media queries, someone the reporter called to try to get more information to do the story. “It wasn’t a source the reporter had been cultivating and who would get into serious trouble if found to be talking to us.

“Even then, we resisted disclosing his identity until compelled to do so by the court.”

The ST source was unlike the Reuters source, reportedly someone from within one of the companies. Still, for ST reporter Arthur Poon, who wrote the original story, the decision to reveal was not something taken lightly.

“We respect the confidentiality of sources and the information that they provide,” he said. “When we first received the lawyers’ letters, we were surprised that they demanded that we reveal our sources.

“After lengthy discussions with my editors, it was with great reluctance that I made the difficult decision to reveal the identity of the source, and only after the court had made the order.”

Copyright Singapore Press Holdings. Reproduced in journalism.sg with permission.