The danger of turning off-the-record into on-the-record

When the News of the World (NoW) reported an offtherecord conversation with Colin Gibson, the FA’s then Director of Communications, concerning Sven Goran Eriksson’s affair with Faria Alam, the consequences, for Gibson and then FA chief executive, Mark Palios, were dramatic.

Whilst designating your comments as “off-therecord” may not have any particular legal force, it has long been accepted that such comments may be used, although not attributed, to the source. These are often matters of trust between a journalist and his source.

Perhaps Colin Gibson was naive in trusting the journalist. However, the issue of anonymity of sources has been made only more distinguishable by this new turn of events.

In the specific circumstances of the recent Faria Alam story, the NoW may have been entitled to invoke a public interest argument in defence of its actions; although the newspaper’s decision, to disclose the remarks, should not be seen to contravene the more important principle of maintaining the anonymity of sources.

The fundamental principle often cited by the media, that the confidentiality of a journalist’s sources is of paramount importance, should apply with equal force to a tabloid scoop about what we, the nation, love best – football, sex and scandal.

The PCC code states: “journalists have a moral obligation to protect confidential sources of information”.

The NUJ’s code of conduct categorically states: “a journalist shall protect confidential sources of information”. This right to protect confidential sources is a fundamental principle also accepted in law. Section 10 of the Contempt of Court Act 1981 protects journalists’ sources.

Journalists have worked hard in recent times to retain the right to keep sources anonymous. Recently, two Channel 4 journalists, Alex Thomson and Lena Ferguson, were ordered by the Bloody Sunday inquiry to reveal the identities of their sources, namely four soldiers involved in the events of Bloody Sunday. It held that the identification of the soldiers was ‘vital’ to the inquiry and emphasised the procedural duty, under Article 2 of the European Convention on Human Rights, to carry out a full and proper investigation in cases where a death, or deaths, result from State activities. The journalists refused to comply, exposing themselves to contempt of court proceedings and, potentially, imprisonment. Thankfully, the inquiry decided that such proceedings would not be pursued.

Having achieved this victory for journalists, however, the media must not allow the principle to be watered down. The ‘outing’ of Colin Gibson may be a different scenario but the media must take care that this does not lead to a slippery slope which permits the courts and others to seek to rely on such actions in the future, to compel confidential sources to be revealed.

The media regularly claims the right to protect its sources, relying on the need to permit sources to speak candidly without fear of being named and the duty to uphold professional standards. By relying on distinctions to support disclosure, when it may be in the media’s interests to reveal off-the-record conversations, it may inadvertently blur the lines, thereby permitting future arguments on the paramount importance of confidentiality of sources in deserving cases to be rejected. While, as the News of the World pointed out, “journalists are not Catholic priests”, they do have a higher moral imperative.

Monica Bhogal is a solicitor in the Media Group of City Solicitors, Charles Russell (which represented ITN and the two Channel 4 journalists involved in the Bloody Sunday Inquiry.

Monica Bhogal

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