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University of Wisconsin–Madison

Category: Feature articles

Ignorance Is Not Bliss: Impacts of Trauma on Journalists


“It was a cool Tuesday in December 2005 and I almost got on board a C-130 plane, which was bound for a war-game zone on the northern coast of the Persian Gulf,” remembers 38-year-old Iranian TV journalist, Behrouz Tashakkor.

He was almost at the airport when the newsroom decided to replace him with another reporter. As Tashakkor was going to the scene of another news event, he saw the same plane crash into a residential complex near Tehran’s Mehrabad Airport, and he was the only journalist at the scene who could report live on the incident. To be more precise, he was the only journalist left alive at the airport – the 64 other journalists were on board that plane to cover the war-game.

“I had reported on plane crashes before, but this time I had to report on the deaths of my own colleagues,” says the war journalist who, more than two years after the tragedy, is still suffering from that “never-ending nightmare.”

“I think recalling those harsh moments is natural, because it was one-of-a-kind. That incident aside I feel unaffected by the other tragedies I have reported on. I think of each story as being separate,” says Tashakkor.

Putting feelings into compartments

Director of the Dart Center for Journalism and Trauma, Roger Simpson, challenges those who repress such feelings. “Journalists often talk about compartmentalizing the experience. The experience happens and then as soon as they are away from it and the story is reported, the walls of the compartments close and then they’re onto something else and try to forget it. That’s a false explanation,” he says.

“I do not call into question journalists’ reasons for adopting personal coping strategies,” he says. “If you’re going to continue in a challenging, risky job like this, you have to survive.” He emphasizes, however, that some of the strategies that journalists adopt, like compartmentalizing memories or repressing emotions, might not favour them in the long run.

Of such strategies, repressing emotions is apparently more popular among journalists. According to Charles Figley, director of the Florida State University Traumatology Institute, “Many journalists tend to repress their emotions in times of trauma and they do that by detaching themselves from the tragic event they are reporting on to the extent that they go some place psychologically in which they can be objective and focus.”

The Iranian Radio and Television’s Bureau Chief in Turkey, Hassan Mirbaha, remembers how he struggled to put a lid on his own emotions when he arrived in the northern Iranian city of Manjil on June 20, 1990, two hours after a 7.3-magnitude earthquake leveled the city and killed 40,000 people. “Everyone was either trying to rescue family members trapped under the debris or was screaming in grief. I wasn’t prepared for this. Then I told myself that I was not there to mourn. I told myself that I had come all that way to report and inform others of what had happened there, what the survivors desperately needed.”

Naeemeh Namjoo, an Iranian journalist who covered another killer quake in the central Iranian city of Zarand in February 2005, says, “In those terrible conditions you should learn how to circumvent the impacts of the tragedy by not recounting the traumatic moments you have gone through during the day.”

And still others come up with different tactics of confronting the trauma they report on. Ensiyeh Sameni, the first female TV journalist to arrive in the southeastern Iranian city of Bam after it was shaken by a 6.7-magnitude earthquake on December 26, 2003, explains how she got around the problem: “Before arriving at the scene I was only focused on how to handle the job professionally but once we landed in the area and were exposed to the tragedy, I fell apart emotionally.” With only two hours before her first live report from the destroyed city, she knew that she had to overcome the emotional part and prepare for the professional part. “I had spent almost all of the two hours crying, hugging surviving kids, and sympathizing with bereaved families, and then all of a sudden it was the airing time,” she says.

One chief editor at the Iranian television’s satellite channel for which she was reporting refers to that first report as “absolutely amazing,” saying that, “She clearly had the impression of grief on her face, and even nearly choked on the air but that made it all the more natural. She kept doing the job perfectly, for more than 10 minutes.” While this journalist had not been able to avert the immediate emotional effects of the trauma on her own spirit, she had managed to survive professionally by immersing herself in the tragedy.

But is surviving professionally equal to surviving the impacts of trauma? Simpson answers, “No. We as journalists do have the means to repress the emotions associated with awful events for a time, but if we don’t adequately deal with the problem, the likelihood is that those repressed emotions surface to trouble us sometimes. So you might experience something terrible today and the compartmentalization factor comes in. But six months from now something will trigger those memories of the experience and it’ll be a very unpleasant recollection.”

Figley also believes that trauma memories can hardly be circumvented. The trauma psychologist compares concealing those memories to trying to store food in a container “which is not airtight.” He argues, “If it’s not airtight then it’s not going to be effective in storing the food. It’s the same way with these memories.”

Many journalists might be carrying disorders from as early as their first traumatizing assignment without even being aware of them. Many even go into denial. A documentary about reporters titled Deadline Iraq: The Uncensored Stories of the War shows how, in their early accounts of reporting on the war, the journalists interviewed deny the impacts of trauma with one of them, a grizzled veteran, even speaking of how absolutely emotionless he was as he witnessed deaths and destruction from close range.

But as Figley puts it, “Whether or not journalists deny that such a thing as trauma [among journalists] exists does not change the fact of the matter; it’s really how they go about conceiving or processing the experience that is the most important thing.” 
       
When trauma overrides journalists

The C-130 plane crash and how it was reported on is still talked about by many Iranian journalists who are grappling with the effects of trauma on themselves. Behzad Tahmasbi, the Iranian News Network’s trauma reporter, comments, “There is no way that I can detach myself from that incident. We were all close friends. And what worsens things is that there is no positive side to it. When reporting on an earthquake you speak of survivors or reconstruction; here you become speechless. It’s a disaster all over.”

Figley explains that the strong difference in impact is because deaths of the people we work with as journalists might change our perception of the profession. “When you are a journalist, there is a certain degree of separation from the people that have been affected,” he says. “There is this veneer, this thin layer between yourself and the people that you are reporting on.” Based on his logic, when we hear or see the death of a colleague, that thin layer disappears all of a sudden. There is more of a sense of our own mortality because “it reminds us more dramatically of how vulnerable we are to death.”

Simpson, however, believes that fear of death or self-mortality might not be the sole reason for journalists’ different view of colleagues’ death as compared to other fatalities. “Each of us has a sense of what the world is like,” he says. “So if I’m a journalist, I have an understanding of what journalists face, what I face. And those other journalists are also a part of my life. When I witness a journalist’s death my sense of my mortality has changed, not because I’ve been intact but because people I’ve counted on being in my world are no longer there.”

Some progress

Despite extensive research on trauma and its impacts on various working communities, it seems that journalism has not yet received enough attention from the trauma experts and even the news organizations. Studies by the Dart Center for Journalism and Trauma show that while emergency workers have recognized the need for self-care and organizational safeguards, particularly in the last decade, journalists may not yet have been recognized as potential candidates for employee safeguards and increased support.

Major news networks such as Reuters, BBC and AP have begun holding trauma training programs and counseling sessions for their journalists, but the trend is far from common at the international level. As Stephen Ward, professor of journalism at the University of British Columbia says, “The myth still exists that journalists shouldn’t need trauma programs because journalists are supposed to be ‘tough as nails.’”

Nevertheless, it seems that it is journalists themselves who can take that most important first step in reducing the adverse effects of trauma on them by increasing their level of awareness of the disorder. They will be better prepared once they know the psychological hazards of the job. And once they know them they can handle them much more easily than before, sometimes as easily as talking about the effects that covering violence and other traumatic events has had on them.

But if they do not have a knowledge of the impact trauma can have, coupled with a supportive environment to deal with its effects, it will be difficult to begin to address their emotional challenges.

Positive news and the television news audience


“Growing up in Vancouver, we always had two newspapers. When I moved to the [Sunshine] Coast I always had at least one and would watch probably the early news and the 11 o’clock news in the evening to keep in touch with everything,” said 50-year-old Shelley Choquer, who now lives in Sechelt, B.C.

But then a combination of factors forced her to change her attitude about the news.

“I was at a stressful time in my life. The girls’ dad left and I thought I had to concentrate more on all the positive things in my life and around me,” she said. “Life was difficult enough without adding to it.”

The thing she left out was news. One day when watching the news she found it so depressing that she just stopped watching. Not only were the newscasters showing a lack of compassion for the victims’ families in the story, but they were showing a lack of compassion for their audience.

“When the kids were young, we stopped watching the early evening news because it’s a bit much for the young people to handle,” she said. There are “some pretty horrifying things in the news.”

In a study I conducted for my Master of Journalism thesis, I found that negative news does have an affect on people’s level of optimism and happiness. The more negative news participants watched, the more their optimism level decreased and the more likely they were to feel sad, frightened, afraid, and tense.

Participants in the online study were asked to take a life orientation test that evaluated their level of optimism. They were asked to wait two weeks and then watch an 11-minute mock newscast and take a similar life orientation test immediately after the viewing. Participants were asked to watch one of five different mock newscasts that each contained different amounts of positive and negative news to see if their optimism and happiness levels would change as a result of watching news. Not surprisingly, they changed for the worse the more negative news they watched.

“500 years from now when archeologists dig up the Blu-ray discs that are left over of the newscasts that we’ve done … they will probably think this is a pretty awful, violent society that is in terrible crisis,” said Bob Nixon, a veteran reporter for CBC in Vancouver. He now has the opportunity on most days to cover positive stories. 
          
Choquer remembers one news story that made her realize the media were crossing the line by accentuating the negative side and showing little care for family members. A mountain biker riding around SFU on Burnaby Mountain didn’t know the path as well as he should have and ended up going over the edge. “The news cameras [were] there and that’s fine if they give a glimpse of the scene that was happening as people were trying to resuscitate him, but the cameraman was right on the scene and they had a heart monitor on the guy and zoomed in to the flat line,” said Choquer.

She immediately got on the phone and was surprised to speak with newscasters. “I aired my opinion that they had gone too far with that particular story. In my opinion it wasn’t necessary to get the news across. It didn’t give any consideration to surviving members of his family that may have been watching the news.” She said the newscaster said that they were “just recording the news” and even asked Choquer where to draw the line. “Well, I guess that’s it,” she said. Showing a young man to the public at the time of his death is where to draw the line.

She didn’t see this as an isolated incident, and to focus on what was good at the time, she stopped watching the news.
          
It is not that journalists look for or choose to air negative stories, but that many stories are a result of what the principles of newsworthiness encourage. These principles are taught on day one of newswriting classes in journalism schools. Students are taught that there needs to be conflict or tension and many times that tension leads to a negative portrayal of the event.

Good news sites Choquer’s solution to combat how the news made her feel but to still stay informed came after a couple years of not watching any news: it was to pay more attention to the good news and read that news first. These were not just stories from local news stations, but a website called goodnewsnetwork.org run by Geri Weis-Corbley out of Virginia. Good News Network is the top hit out of 170 million pages when searching for “good news” on Google.

“It was needed,” said Weis-Corbley, who has been operating the site for 10 years. “The world needed something like that. It was obvious to me.” She says that there is real demand for positive news. The site receives over half a million views and over 50,000 unique visitors per month.
          
Weis-Corbley was formerly a television producer and she originally wanted to produce a positive television news program, but that was going to be too expensive. At that time the Internet was emerging and she saw the new tool as her chance. 
          
“I have long been practicing the lifestyle that says you need to think positively to have positive results in your life,” said Weis-Corbley. “I obviously realized that it was important to keep your spirits up through what you are bringing into your mind.”

“I have manifested all kinds of great things in my life and great moods through looking at good news and not dwelling on the negatives that are also going on in the world. I listen to the headlines, but I don’t dwell on the negatives,” said Weis-Corbley. “I feel good everyday…that is the reason I can do this site everyday for 10 years and not be paid for it.”

A matter of balance

However, neither Weis-Corbley nor Choquer see this as a way to get all of the news. They both see it as a way to balance out the daily news diet that includes mostly negative news.
          
“I see it as similar to a vitamin supplement,” said Weis-Corbley. “It gives you what your media diet doesn’t give you to help balance the daily barrage of negative news.”
          
Evidence backs up what Weis-Corbley and Choquer believe. In an article by communications professors Gerald Stone and Elinor Grusin, it was found that the average amount of positive news on ABC, CBS and NBC was 25.1 per cent. This is not to say that the rest is negative. Almost half, 46.8 per cent, was found to be negative. The other 28.1 per cent they called “indeterminable.”    
            
It is a balance that evening daily news doesn’t have, according to Choquer. Les Staff, executive producer of CTV News in B.C., agrees with the percentage of positive and negative news. He contends that it is important to show the negatives to let people know where society can be improved. “It [all positive news] is like eating dessert every night for supper,” said Staff. “People want to know what’s going on and you can only take so much sugar.”
            
Journalists have an ethical responsibility expose the truth, even if it is negative, so society can learn from mistakes and take steps toward improvement. CTV assignment editor Ethan Faber refers to his role as being the person who shines the flashlight on the potholes. But people like Choquer and Weis-Corbley say that media portrayals, while accurate, focus on the negative parts of society.

Some positive news broadcasts have been tried, and they were tremendously successful for a couple months, but then the ratings dropped. Staff attributes that to people wanting to be informed.

“A public that is shielded from the things that are not positive is a public that is ill-informed and cannot make reasonable decisions about the world around them and how they want the world around them to evolve,” said Staff.

Drama leads

In television news, whether a reporter is packaging a story or a producer is lining up a show, the most dramatic picture should lead. It makes sense that the picture that will catch the viewers’ eyes and make them want to keep watching will be shown first. “The pictures [from the stories with most impact] tend to be dramatic and quite often negative in the sense of people dying,” said Nixon.

Nixon believes that if the news weren’t so gruesome, fewer people would watch. “There is a fascination with nasty stuff that people want to watch or are conditioned to watch.”

Even though both newsmen agree that there is there is more negative news than positive, Staff says, “If I have an opportunity to lead with something that makes me smile I will do that in a heartbeat.”

However, it is not just that positive news is relegated to the end of the newscast, but also that television news stories contain little context showing the viewer how they can prevent a similar incident or improve the current situation. If the viewer can feel helpful, they will feel more positive and the reporter will be showing compassion toward the viewers.
            
Staff disagrees saying that is exactly what his reporters strive for.  “Who, what, where, when, those are the easy four … it’s the why, and that is how we provide the context,” said Staff. “They [the viewers] want context around the tragedy and if there is no context, if there is no broader story then it won’t lead our newscast.”
            
While TV news is fighting an uphill battle because they need to show dramatic pictures and tell the story quickly, the medium is good at giving viewers an emotional connection to the characters in the stories. “An emotional connection can be as much about making them smile, making them laugh as it can be about people becoming angry or upset or sad,” said Staff. 
            
For Nixon, it is not only about adding context, but using the emotions of the characters to connect with the audience. “The value that I bring [with the positive stories] is the sensibility that hopefully strikes a chord in the audience,” said Nixon. “The stories I do allow me to tap into a spectrum of emotions and what people are feeling and I think in a way that is more true to what people might be feeling out there than the outrageous things, which happened to a small percentage of the population.” 
            
“If you go and look at the types of stories television does and does well like murders and mayhem and anger…that strikes me as a narrow emotional range that people have,” said Nixon. “What I find I like about doing these stories is there is a whimsy in people’s lives. There is a desire for just wanting to laugh.” 
            
Nixon says that for all of his stories he tries to find out what drives that person. “You are seeing a story about people who just have these particular passions and I think that is a positive thing.”

Practicing compassion in an unbiased journalism


In the 1880s, Joseph Pulitzer hung a sign in the newsroom of his paper, the New York World, which read: “The World has no friends.”

It is an historic example of journalistic independence, a value that became intrinsic to the field and is still a highly regarded principle among journalists. It is a notion that goes hand in hand with objectivity – a word that, for better or for worse, was chained to journalism for much of the 20th century. Objectivity, in its traditional sense, is the ideal that journalists are unbiased, keeping their values and beliefs out of their work. These goals of independence and objectivity left little room for compassion. But in today’s changing media environment, the principle of compassion is gaining credibility.

“The World has no friends” gives the impression of detachment, perhaps even disconnect from community. These are disconcerting qualities for a craft that is built on a trusting relationship with its audience. Despite this, these concerns have just begun to be addressed seriously in journalism. This is because, for those who subscribed to traditional objectivity, compassion was simply not possible. Acknowledging emotions and allowing those emotions into a story was not compatible with objectivity.

But this view of traditional objectivity in journalism is outdated. The idea that journalists can truly be “objective,” completely disregarding their own ideas, beliefs, and experience, has largely been rejected. The legacy of objectivity and independence that made it difficult for journalism to usher in new traditions, such as compassion, is changing as journalists abandon such black and white ideals.

“I don’t think that having a compassionate outlook is in any way at odds with doing one’s job as serving the public interest,” says Romayne Smith Fullerton, a professor of information and media studies at the University of Western Ontario. “I think not to have compassion might, in fact, undermine your ability to do your job as a servant of the public interest.”

A major reason for this is that the journalist’s ability to understand and connect with people is essential for learning about stories, and compassion allows journalists to do this more fully. In our current media environment that so often deals with victims of tragedy, a sense of compassion undoubtedly plays a part in journalists’ ability to understand people in the news.

Empathy as a tool

Patrick Lee Plaisance, a professor of journalism and technical communication at Colorado State University, believes empathy is an important tool for journalists.

“I’m a good journalist when I can empathize, when I can truly grasp the predicament of my subjects. And if I’m blind to that, then I’m failing in some way as a journalist,” he says. “It’s critical for journalists never to lose sight of their own humanity and that means understanding and empathizing and connecting on a human level, not just as instruments of stories.”

Plaisance is clear that this must be done within the context of broader journalistic goals such as telling the audience a relevant story in an unbiased, informative manner. But he says, “If I’m clear on my professional duty to a broader community, a broader audience, then I’m hoping that compassion is appropriate and I’m not too lacking and I don’t become sympathetic, rather than empathetic.”

Though the difference between sympathy and empathy may seem trivial, there is an important distinction that the journalist must make between them. To be sympathetic means to feel remorse for someone’s situation. It is dangerous territory for a journalist because, in sharing suffering, one’s own motives might become affected. But empathy is the understanding and recognition of another’s feelings. This allows the journalist to be more connected and perceptive.

However, being an empathetic journalist can be challenging. A real sense of empathy requires understanding the spectrum of ideas, events, and communities related to a story. Regardless of a reporter’s intelligence or skill, if they are thrust into a situation and have had a short time to conduct background research, they cannot be expected to be as empathetic as someone familiar with a particular community or situation.

Fred Brown, a former president of the Society of Professional Journalists and currently the vice chair on its ethics committee, has noticed a decline in the connections journalists have with their communities. “One of the things that disappeared over the years is there are a lot of beats that no longer exist, and so reporters tend not to see the same people day after day.” This not only puts them at a disadvantage in terms of information, but also doesn’t allow them to approach the stories and characters with the same sense of compassion.

Fullerton agrees that beat reporters have an advantage. “I think we need to do a better job of reporting things in broader contexts, more detail, less reporting necessarily in times of crisis, trying at times of peace as well, or quietness, to open up lines of communication between and amongst communities so that journalism generally can foster better understanding all of the time.”

This is different from the oft-used technique where a reporter briefly tells a story of crisis and never revisits the issue. Focusing on a broader perspective can ultimately lead to a more informed and compelling narrative for the audience.

“The whole mission,” says Plaisance of journalism, “is to, as accurately as possible, inform and reflect the community that it serves. And compassion’s role is to help establish a connection that is required to perform that service.”

Compassion in the hierarchy of journalistic values

While compassion should perhaps become more prevalent in journalism, it cannot be at its core of values. If it were, journalism’s purpose would be defeated. Important information that the public should know would often not be exposed for fear of harming someone. To this end, Brown says that though compassion is important, accuracy and truth telling are paramount.

The idea of “minimizing harm,” a value put forth in many journalism ethics codes, is subordinate to these. “You can’t be too compassionate. You can’t ignore stories just because it’s going to hurt somebody. Every story, or most stories, have some harmful effects on somebody simply because that’s the nature of news.”

Compassion must also be an informed emotion. It serves little journalistic purpose if it is not linked to relevant information. “Intellect and emotion are connected. You engage one without engaging the other at great peril,” says Lee Wilkins, a professor of journalism at the University of Missouri. Eliciting compassion through a photograph of a starving African child, for example, is not conducive to the goals of journalism. If a journalist wants to evoke compassion from such a story, it should be done in the context of facts such as why the child is starving, if there has been an ongoing problem, and how the problem can be resolved. Evoking compassion in the audience without this context can leave the audience feeling helpless.

Compassion also inherently biases stories to a more local, relational level because that is where compassion is felt most for both journalists and audiences. Compassion is more prevalent on smaller scales with homogeneous audiences. “It does get trickier to do, the bigger your community gets,” says Fullerton.

Both these issues of becoming too compassionate or getting “too close” to a story, as well as instilling a local community bias, threaten journalistic independence. This is why many journalists are uncomfortable about the idea of compassion. So while it may be an important value, if pursued blindly and without regard for other news values, it can eclipse the broader goals of journalism. “Journalism is not a popularity contest and when people assume that it is – that journalism is done to make audiences feel good – that’s a problem,” says Plaisance. “Journalists don’t need their sources or their audience to be their friends,” echoes Fullerton.

Negative image

While journalists might not need to make friends as Pulitzer held in the 1880s, their public image is important. Journalism is responsible to the public, while the public is asked to trust, and hopefully respect, journalists and the institution of journalism.

But the public’s image of journalism is not healthy. A study from the Pew Research Center for the People and the Press found that 32% of people surveyed thought news organizations were immoral. “If I were to go outside the school of journalism and bump into somebody, what they’d tell me is that journalists will do anything to get a story, that all we care about is making a buck,” says Wilkins.

Brown believes part of this image is because when journalists are in public, they are not often in a position to display their best “manners.” They can be seen as belligerent, stubborn, disrespectful – and certainly not compassionate. But this is because often when they are in the public eye, they are interacting with officials, press agents, and celebrities that require such actions. Dealing with people in such roles doesn’t require as much compassion.

Part of exercising compassion professionally for journalists is to be aware that different subjects need to be treated with different levels of compassion. “The big distinction is between those who seek attention, and those who get attention simply because of what’s happened to them,” says Brown. Unfortunately for journalism’s public image, it is often the group of people that requires a lesser extent of compassion that journalists interact with in the public eye.

The other group is those who are vulnerable or who do not seek attention. Children, the elderly, victims of tragedies, and people who are not fully aware of the workings of media should be afforded more compassion than those who seek the spotlight. But the public does not often see how journalists treat these people. To exercise compassion when dealing with those who are vulnerable often means conducting an interview in a private setting as opposed accosting the victim in public or even at a scene of an accident or crime. It is often when journalists are not seen by the public that they are most likely to be acting compassionately.

While a greater sense of compassion within journalism may be helpful, the public’s image of immorality may be excessive. “I’m always struggling with what I think is a very tragic disconnect between what journalists do and what the public think journalists do. It’s a pretty wide gulf,” says Plaisance.

A Changing Value

One way to dispel this negative public image and alert the audience to journalism’s use of compassion is through transparency. Fortunately, the Internet has allowed an opportunity for a massive increase in journalistic transparency. Emails, blogs, feedback, comments, and other easy forms of communication can create a connection with readers that allows them to see when journalists are compassionate, to whom, and why.

For Fullerton, compassion is a great tool for showing the audience that “there are things at stake here that we need to care about.” But despite its efficacy in journalism, compassion is not a newsroom staple. Fullerton explains that this is because, “By and large, it’s hard to draw a line. It’s one of those extremely gray areas that no one feels completely comfortable about so we just sweep under the rug.”

Fortunately, compassion is a value that need not be taught. As a human emotion, compassion is something that everyone identifies with – including journalists. But some journalists have been taught to ignore compassion in the interests of traditional objectives. Now, many journalism critics agree that there must be a balance between being compassionate and employing such news values. When this is achieved and balance is used in a professional manner, it is useful.

Compassion can establish valuable connections with sources that can help journalists get beneath the surface of a story. It can aid in relating stories to the audience, and triggering an informed emotional response that encourages civic engagement. And while journalists need not make friends as Pulitzer thought, a mix of compassion with other established journalism values may go a long way in putting a human face on journalism. It may convince audiences that journalism is not immoral, rather, it is a noble craft connected to the people it serves.

The Law and Confidential Sources: A Cautionary Tale

Confidential sources have been of enormous value to journalists and the public at large.

The information they have brought to light has helped expose truths such as the corruption of a U.S. president, unethical business practices by a Canadian prime minister and health violations in restaurants and other public facilities. At the forefront of these stories have been hard-nosed investigative reporters eager to reveal truths that would otherwise remain hidden. At the heart of them, however, are people whose fear of reprisal forces them to hide their identities.

The courts and the press can often be seen to share the pursuit of truth and justice, but they meet head-on where anonymous sources are involved – the former wishes to uphold the authority of the justice system, while the latter is eager to bring truth to light. The use of an anonymous source to make that happen, however, often forces these purposes into conflict.

This article examines Canadian laws as they affect the use of confidential sources in news stories. It aims to provide a cautionary framework for journalists looking to use confidential sources in their stories and examine the ethical responsibility that a journalist should have to a source under Canadian regulations.

Breach of Trust

Breach of trust is a law often encountered in situations where a public servant discloses secret information to a journalist. The law is outlined in section 122 of the Criminal Code, which says that any public official who commits fraud or breach of trust in connection with the duties of his office can be subject to a prison term of up to five years.

A recent case helps illuminate the risks inherent in coming forward with such information. Dennis Bueckert, a now-deceased reporter with The Canadian Press, broke a story in April 2007 about a secret government document that outlined a spending plan for numerous environmental initiatives, including $230 million to develop clean energy technologies. Bueckert’s story noted that the plan would fall short of the government’s emissions targets under the Kyoto Protocol, a topic of vigorous discussion at the time the story was printed.

Three weeks after the story was published, an Environment Canada employee was arrested for breach of trust in connection with the leak, however reports from that day said he was released and not charged. Two days later, the leak revealed himself as Jeffrey Monaghan, a temporary employee with the ministry.

Describing himself as an anarchist, he said the proposed breach of trust charges were “a profound threat to the public interest” and that his arrest was “an extension of a government-wide communications strategy pinned on secrecy, intimidation and centralization.” It was later revealed that Monaghan was the drummer for the Suicide Pilots, a punk band whose songs drew parallels between Stephen Harper and Adolf Hitler.

As of May 2007, no charges have been laid against Mr. Monaghan, but his antics drew fire from a Carleton University business professor, who said that the episode displays the risks of laying government work on temporary employees.

Contempt of Court

Contempt of court is the law that many reporters fear where confidential sources are concerned. It is the only remaining common law offence in Canada and is defined as a “breach of a court order or other interference with the proper administration of justice.” In this context, it can affect reporters who refuse to disclose the identities of confidential sources to the courts.
          
Ken Peters, a municipal affairs reporter for the Hamilton Spectator, encountered this very situation in 1995 when an anonymous source provided him with documents that detailed municipal investigations into health and safety concerns at St. Elizabeth’s Villa in Hamilton, Ontario. Peters wrote three stories about the investigations, articles that prompted the St. Elizabeth’s Home Society to sue the City of Hamilton and various other parties for “defamation, negligence and abuse of public office for releasing documents to the media.”

Peters was subpoenaed to testify at the trial and bring all documents related to the stories. He said that he received the documents from a confidential source while another individual was present. Justice David S. Crane, the presiding judge, ordered Peters to reveal the identity of that individual, but he refused, saying that doing so could lead to identifying his source. Justice Crane nevertheless asked Peters to reveal the identity anyway, but he protested, telling the judge, “With all due respect, your Honour, I can’t do that.”

Justice Crane then scheduled a show cause hearing after citing Peters for contempt of court. To him, refusing to reveal the identity of the second individual was contemptuous, saying that his refusal to identify the individual presented “defiance to the authority of the Supreme Court and an obstruction to the administration of justice.” As a result, Peters was fined $31,600 after his refusal to identify the individual.

The case was appealed, however, and Justice Robert Sharpe of the Ontario Court of Appeal overturned this decision after considering a series of legal precedents. The first was the “Wigmore Criteria,” a four-part test to determine whether a journalist-source relationship can enjoy protection. The test must determine the following:

The communications must originate in a confidence that they will not be disclosed

This element of confidentiality must be essential to the full and satisfactory maintenance of the relation between parties

The relation must be one which in the opinion of the community ought to be sedulously fostered

The injury that would inure to the relation by the disclosure of the communications must be greater than the benefit thereby gained for the correct disposal of litigation

Justice Sharpe went on to cite numerous precedents establishing the importance of source confidentiality. Among them was the decision of the Supreme Court of Canada in Canadian Broadcasting Corporation v. Lessard, a case in which police obtained a warrant to seize videotapes at the CBC’s head office in Montreal. Justice Sharpe quoted Justice Beverley McLachlin of the Supreme Court in his decision: “[C]onfidential sources of information may be fearful of speaking to the press and the press may lose opportunities to cover various events because of fears on the part of participants that press files will be readily available to the authorities.”

That Court decided in favour of the press, ruling that the search of CBC offices impinged on Charter s. 2(b) (freedom of the press) because the justice of the peace that issued the warrant did not provide evidence that the sought-after information could have been obtained elsewhere.

Justice Sharpe also cited the “Dagenais/Mentuck test,” a series of criteria that arose out of cases involving publication bans. The test asks courts to approach cases in a way that avoids prioritizing one Charter right over another and minimizes the impact on the affected rights and values. This test was also used in Vancouver Sun (Re), a Supreme Court decision in which the newspaper sought access to an in camera hearing related to the Air India trial. The judges argued in that case that the Dagenais/Mentuck test should apply to all judicial decisions that could limit the press’ freedom of expression.

Sharpe thus argued that the Dagenais/Mentuck test should likewise apply to journalist-source confidentiality and ruled that the charge of contempt against Ken Peters did not comply with the criteria under either test. He argued that Peters should have received an opportunity to seek other avenues to produce the information and thereafter set aside the finding of contempt and its associated penalty. The Canadian Association of Journalists (CAJ) hailed the decision but argued that Canada needs a shield law to protect journalists from charges of contempt.

Bill C-36

September 11, 2001 brought a chill to the hearts of westerners when two planes collided with the World Trade Centre. The fear reached Canadian legislators when they introduced Bill C-36 – the Anti-Terrorism Act – a sweeping legislation that would amend the Criminal Code, the Canada Evidence Act and several other Acts in order to provide government and security agencies with expanded capacities to combat terrorism. Those capacities included regulations that can affect the media’s use of confidential sources.

Bill C-36 accorded new powers to Communications Security Establishment Canada (CSEC), an agency that gathers foreign signals intelligence and protects electronic information. The agency, which reports to the Minister of National Defence, drew criticism in the past for allegedly monitoring two ministers in Margaret Thatcher’s cabinet on behalf of the British Secret Service, but despite this controversy it was given enhanced powers to gather foreign intelligence through intercepted communications.

Section 273.65 of the deemed that the Minister could, for the purpose of gathering foreign intelligence, give authorization to CSEC to “intercept private communications in relation to an activity or class of activities specified in the authorization,” meaning that the agency could tap any communication signal interacting with a foreign entity when authorized by the Minister of National Defence. The Minister could provide this authority to the agency if it met the following criteria: the interceptions targeted individuals and associations outside Canada; the desired information could not be obtained any other way; the interception justified the intelligence to be gathered; sufficient measures were taken to protect Canadians’ privacy and ensure private communications are retained only if essential to international affairs, defence or security.

This section could affect journalists who communicate electronically with confidential sources from foreign countries. Those sources, if deemed salient to foreign intelligence, thus cannot be given credible assurances that they will remain anonymous. There is likewise nothing in the Act to suggest that Canadians should be notified if their phones are being monitored, which means that journalists can give sources whatever assurances they want, but the authority accorded to CSEC by Bill C-36 has rendered such assurances moot.

The Canadian Bar Association filed a submission to the government about Bill C-36 shortly after it was tabled in the House of Commons. It argued that section 273.65 “removes any ability for journalists to keep their sources confidential.” The CBA said the section was problematic because it “relies on the Minister’s discretion to weigh the government’s interests and privacy rights.” The submission ultimately argued that the reference to the Minister in section 273.65 should be amended to read “a judge” instead of conferring that level of authority on the Minister. 
In the end, however, the CBA’s efforts were not fruitful. The Act received Royal Assent on December 18, 2001, and the provision allowing CSEC to monitor calls as the Minister pleases remains in effect.

No Protection

Wherever a journalist opts to use a confidential source, they must first recognize that they are putting that person at risk in an environment that affords them no legal protections. Kim Bolan, an investigative reporter at the Vancouver Sun, said in an interview that journalists must seriously consider whether they can really guarantee anonymity to a source.

“I have to make absolutely sure that I can make the promise and commitment that I have made to the person,” she said. “If they do have concerns about the information eventually being linked to them, I try and figure out other ways to get the same information, and I think that is kind of the best way to protect somebody.”

At a time when no protections are offered for journalist-source relationships, a primary ethical test should weigh potential consequences to themselves against those that could befall their sources. In general, the risks to the source should outweigh those to the journalist, as revealing a source because of the risks involved in keeping someone confidential could ultimately lead to various ulterior consequences: sources could dry up; a reporter could lose his ability to be trusted; his media outlet could lose the ability to breakk exclusive stories about malfeasance by public officials. When considering the consequences to themselves, journalists should also remember that Canadian press agencies have a history of successfully fighting back against infringements on freedom of the press, as in the cases of CBC v. Lessard and Vancouver Sun (Re).

Where Bill C-36 is concerned, however, this test cannot apply. In cases where a journalist deals with a confidential source who is also a foreign entity, the reporter must inform the source that they will not personally disclose their identity, though the source should be warned that there is nothing the reporter can do to guard against the government intercepting their phone call and thus identifying the source.

The onus on a journalist to protect sources’ identities could soon be lifted in the legislative and judicial branches of government. In the case of the latter, the National Post is appealing an Ontario Court of Appeal decision to turn over to police a document that allegedly contains details of a loan application for the Auberge Grand-Mère, a hotel in former prime minister Jean Chretien’s riding. The document was obtained by investigative reporter Andrew MacIntosh while he worked for the Post in 2001.

When news of the document first surfaced, it appeared to implicate Chretien in a conflict of interest. Now the RCMP is hoping to obtain the document in order to do forensic tests to determine who leaked it. The Post is challenging the ruling, saying in an editorial that the effect of the judgment is that officers can “waltz right on in” on journalists and obtain their materials.

Even if the SCC does not rule on behalf of the National Post, a landmark piece of legislation currently circulating in the House of Commons could go a long way to cementing protection for confidential sources in Canadian law. Bill C-426, an “Act to amend the Canada Evidence Act (protection of journalistic sources)” has been put forward by Bloc Quebecois MP Serge Ménard and is now being studied by the Standing Committee on Justice and Legal Affairs.

It proposes an amendment to Section 39.1 that reads, “No journalist shall be compelled to disclose the source of any information that the journalist has gathered, written, produced or disseminated for the public through any media or to disclose any information or record that could identify the source.” It also contains a provision that judges cannot issue search warrants or compel the disclosure of any information relating to an anonymous source unless it is in the public interest.

“[The amendments] will be very useful in practice for police that want to know what they can do,” Ménard said in an interview. “It will be good, I think, for justices and judges… because then they will have in two pages what the must check before issuing a warrant.”

Despite an endorsement from the Fédération professionelle des journalistes du Québec (FPJQ), Ménard’s bill has not won the support of the Canadian Association of Journalists, which feels it does not go far enough to protect sources, according to CAJ president Mary Agnes Welch.

“There’s still a way for courts to say, ‘This is one of those very important times where a journalist has to hand over a document,’” she said. “We think that, for us, that would compromise a fundamental belief of the CAJ, that journalists ought to have pretty blanket protection.”

Welch added that she is not confident the bill will pass into law.
Ménard, however, is optimistic about its future. He believes that the Liberals and the NDP will support it when it goes to a vote which, combined with the support of his own party, would give it enough votes to pass.

“This kind of bill, we love it when we’re in opposition, we hate it when we’re in power,” he said.

Whether the bill passes or not, it comes at a time when people are asking serious questions about whether anonymous sources should have legal protections. In the past reporters have run the risk of being found in contempt when using a source, and the sources themselves have faced legal reprisal if found out. R v. National Post and Bill C-426 are two situations that could enshrine source protection in Canadian law.

For now,  however, journalists must continue to weigh carefully the prospect of committing a common law crime against revealing a source’s name – either of these trials could alleviate, if not remove entirely, the weight of that choice.

Protecting Sources in America

This article explores how the U.S. legal system protects journalists’ confidential sources and the threats that reporters face. In particular, this article highlights recent trends in judgments by the U.S federal court to limit the scope and availability of reporter’s legal privilege and some effort reporters make.

Role of the public interest

Pulitzer Prize winner Judith Miller, a 57-year-old New York Times reporter spent 85 days in jail in 2005 for refusing to disclose the details of her conversations with Lewis “Scooter” Libby — the chief of staff to Vice President Cheney — to Special Counsel Patrick J. Fitzgerald. She was eventually forced to testify in court last year.  In October 2004, U.S. District Judge Thomas Hogan ruled Miller in contempt for refusing to provide evidence to a grand jury on who leaked the name of Valerie Plame, a CIA agent. In the U.S., publicly naming a CIA operative is a criminal offence.

After serving 85 days in jail, Miller said that she had clearance from her source to disclose their identity and the details of their conversations. Miller testified that Libby told her in a confidential conversation on June 23, 2003, that Valerie Plame, the wife of Joseph C. Wilson, a prominent ambassador and critic of the Iraq war worked at the CIA.
Libby is charged with lying to FBI agents and a grand jury and with obstructing justice in the investigation of who leaked undercover CIA officer Valerie Plame’s name to the media.

In this case, the U.S. Supreme Court declined to take up an appeal of a decision that rules the reporter’s privilege does not protect Judith Miller of the New York Times from having to reveal their confidential sources.

Peter Klein, an Emmy Award-winning investigative journalist, and a CBS 60 Minutes producer, commented that the case was handled really badly in some way and “the way that the prosecution went after Judith Miller and locked her up” hit him personally. 

“Because they had the information and they were just making an example of her,” said Klein. This case shows the fragility of reporters’ general working assumption that they can protect the identities of confidential sources. The problem, according to Klein, goes back to the fact that testimony can be compelled on a federal court level.

Fernando M. Pinguelo is a trial lawyer licensed to practice law in New York, New Jersey and Washington, D.C.  Pinguelo said this case showed that the reporters’ privilege is not absolute. “In any given scenario, a court must balance the First Amendment interest in gaining access to crucial information necessary for the exposure of illegalities and other corruption in society, against the legal public policy perspective whereby a source’s identity can be of critical importance to a criminal investigation or in a defendant’s right to confront his or her accuser, or even in civil cases, in particular defamation lawsuits alleging the publication of false information.” Pinguelo said in an interview.

No federal ‘privilege’

Both in Canada and the U.S, privilege does not give journalists absolute protection from legal pressures to reveal their sources. Reporter’s privilege is not recognized at a federal level.

The U.S. Supreme Court addressed the issue of a reporter’s “privilege” in 1972. In Branzburg v. Hayes, the Court held that the First Amendment did not give journalists the right to refuse to testify in a grand jury proceeding and answering questions as to either the identity of his or her news sources, or information which he or she has received in confidence.

Despite repeated attempts, Congress has not enacted a law recognizing a reporter’s privilege.  However, the Senate Judiciary Committee has conducted hearings on the issue of proposed legislation that would afford some protection to journalists. While enactment of such a law is far from guaranteed, public outcry has again brought the issue to the forefront of debate.

In the U.S, the symbiotic relationship between journalists and confidential sources enjoys more protection in most states than it does in Canada. Even though the First Amendment does not protect journalists from being subpoenaed by a federal grand jury, the U. S. Supreme Court did acknowledge that newsgathering is not without protection and left it to the states and the federal courts to decide when newsgathering interests could reasonably support the reporter’s claim of privilege.

Shield laws

So-called “shield laws” were enacted in many states to protect journalists from legal pressure to reveal their sources. Shield laws recognized the important protection required by reporters. Each state’s protections vary, with some states protecting only the “source,” while others afford protection to both the source and the unpublished information.

In Canada, a few provinces have toyed with the idea of enacting their own shield laws, for example, Quebec, but no such law has been proposed to date. A few provinces, notably British Columbia and Saskatchewan, have largely rejected the idea that media enjoyed any special privileges.

When the seminal U.S. Supreme Court case Branzburg v. Hayes was decided in 1972, seventeen states had already enacted “shield journalists with varying degrees of protection for their sources and information.  Today such laws have been enacted in at least thirty-two states and the District of Columbia.

According to Pinguelo, in states where the reporter’s privilege is recognized, various competing interests will be balanced when a court considers a reporter’s refusal to reveal the identity of his or her source. To tip the scale in favor of disclosure, this balance often includes a showing that: (1) the information is unavailable and cannot be obtained elsewhere; (2) the information is not cumulative and is “of central importance” to the case; and (3) the need for the information weighs in favor of disclosure.

This shows the reporter’s privilege may be overcome if the identity of a confidential source goes to “the heart of the matter” and the plaintiff has exhausted all reasonable alternative avenues to learn the identity of the leakers.

The struggle continues

Despite limited legal protection, some efforts have been made by media to protect their sources in the U.S. in recent years.

On Aug. 18th of 2004, five reporters from The Washington Post, the New York Times, the Los Angeles Times, ABC News and the Associated Press news agency were held in contempt of court after refusing a federal court’s order to reveal their confidential sources for reports on the 1999 FBI espionage investigation of Wen Ho Lee, a former Los Alamos nuclear scientist.

Relying on confidential information, Lee was identified as the investigation’s prime suspect by a number of news outlets in 1999. The court ruled that Lee had exhausted his alternatives. Learning the identities of the sources also goes to the heart of Lee’s lawsuit, the court added, because he needs to show that the leaks were intentional.

On June 3, 2006, the five media organizations agreed to pay Lee up to $750,000 in conjunction with the government’s $895,000 to drop his lawsuit. All five media paid out of concern that their reporters would have to give Lee the names of their government sources, as courts had ordered.

In this case, the media’s payments, particularly in conjunction with the government’s, are “exceptionally” unusual and may well be unprecedented, according to Lucy Dalglish, executive director of the Reporters Committee for Freedom of the Press, a nonprofit group that provides legal advice to reporters and media organizations.

Such a settlement, she told The Washington Post in 2006, potentially exposes the news media in other Privacy Act lawsuits, “I’m very troubled by the results,” Dalglish said, “but I’m not sure I could have negotiated anything better.”

Lawyer Pinguelos suggested that reporters should make any promises of confidentiality sparingly, because a reporter’s interest in protecting the identity of the source may, in fact, yield to the public interest in disclosure. “Don’t make promises you can’t (or won’t) keep.” Pinguelos said.

Klein, on the other hand, thinks it is a fundamental principle that reporters stick to the promises made to the confidential sources, even it means going to jail. It comforts him that the culture of journalism in the United States supported the idea.

“There is a badge of honor by going to jail and taking your confidential sources information with you to jail,” said Klein “At least in the United States, the culture is there for that.”

The BALCO case

The San Francisco Chronicle published stories in 2004 about a BALCO steroids investigation, involving grand jury testimony of four baseball stars, Barry Bonds, Jason Giambi, Gary Sheffield, and sprinter Tim Montgomer.

In 2006, Lance Williams and Mark Fainaru-Wada, the two San Francisco Chronicle reporters, were ordered jailed by a federal judge after they refused to divulge their source. The reporters repeatedly had said they would rather go to jail than reveal how they obtained the transcripts from a grand jury that investigated the Bay Area Laboratory Co-Operative.

A federal court judge ruled that Williams and Fainaru-Wada must testify before a federal grand jury and reveal the name of the confidential source who leaked information to them about the testimony in the BALCO case.

The two reporters avoided jail time because attorney Troy L. Ellerman pleaded guilty to two counts of contempt. He, allowed the Chronicle reporters to see transcripts of each of the men’s testimony in 2004 in violation of a court order when he represented Balco founder Victor Conte Jr.  and Vice-president James J. Valente.

According to News Watch, a U.S weekly newsletter produced by the Gannett Corporate News Department,recent developments highlight an ongoing trend in federal courts to limit the scope and availability of the reporter’s privilege.

But to Pinguelo, the trend is less obvious. “While recent high profile federal cases may appear on the surface to paint a bleak picture for the privilege, other signs show that the privilege has actually been strengthened over the past couple of years,” said Pinguelo in an interview. “Moreover, courts continue to uphold the existence of the privilege under state and federal law.”

“By one estimate, the press was protected from compelled disclosure of information and sources in approximately sixty percent of the roughly twenty court cases decided two years ago.” Pinguelo continued. This percentage is consistent with the pattern over the last thirty years.

Against this backdrop of diminishing protection for the reporter’s privilege in the federal courts, legislation has been introduced in Congress that would establish a federal shield law similar to those enacted by many states. The legislation would provide significantly more protection to reporters than the federal courts currently do and is supported by a broad based coalition of media and reporters’ organizations.

Klein suggested that reporters should work together to put a federal shield law into place. Patience is needed, according to Klein, to push such a federal shield law into existence.

Klein said, “There are enough cases in which journalists have gotten burnt and hopefully, if there is a kind of cultural solidarity remains will be able to push something like that (a federal shield law) forward.”

A Right to Protect? The confidential source controversy in journalism

The right of journalists to use and protect confidential sources is being hotly debated in Canadian newsrooms and courthouses.

Many journalists say that confidential sources are an essential tool in the search to uncover information of great public interest.

“My ability to protect confidential sources is paramount to my ability to do my job,” says former National Post investigative reporter Andrew McIntosh.

However, Canadian police argue that journalists have no right to protect the identity of their sources when they are sought as part of a criminal investigation.  In many cases judges have agreed with them.

“The court must ensure that the privacy interests of the press are limited as little as possible.  But the court must also balance against the privacy interest of the press the state or other societal interests in getting at the truth,” wrote Judge John Laskin in a 2008 decision at the Ontario Court of Appeals.

The competing interests of journalists and police officers have been brought to a seemingly irreconcilable head. Journalists must keep the promises they make to their sources and police must solve the cases to which they’re assigned.

There’s no unanimity on the thorny issue of confidential sources even among journalists themselves. Some argue that confidential sources diminish press accountability and can provide cover for biased sources or even intentionally deceptive journalists.

“In some cases confidential sources are misused when we allow individuals to make personal attacks and hide behind the wall of anonymity,” says Bob Steele, scholar for journalism values at the Poynter Institute in St. Petersburg, Florida.

Recent court decisions continue to swing the pendulum back and forth, and as the contradictory rulings mount, the debate over the use of confidential sources in Canada is as lively and unresolved as ever.

An Eventual Victory

Hamilton Spectator reporter Ken Peters is a firm believer in the virtue of confidential sources.

“Without confidential sources we are not able to do our jobs. It’s an important and invaluable tool for journalists to have,” Peters says.

When Peters cited documents leaked to him by an anonymous source in a 1995 story about abuses in a Hamilton nursing home, he had no idea that ten years later his decision to grant confidentiality would see him convicted of contempt by Ontario’s Supreme Court.

In 2004, the subject of Peters’ story, the St. Elizabeth Home Society, launched a $15.5-million defamation lawsuit against the City of Hamilton. Peters was called to testify and told to reveal his confidential source by Ontario Supreme Court Judge David Crane.

Peters politely refused the request.

“I knew in my heart that I could not reveal the confidential source then walk back into my newsroom. It just goes against all the grains of principal that I have for the craft,” Peters said.

Facing a contempt of court conviction, Peters asked Judge David Crane to jail him rather than issue a fine, knowing that his employer would step in to pay it.

“I felt that if there was punishment to be meted out it should have some direct bearing on myself,” Peters explained.

However, Judge Crane did not oblige him and the Hamilton Spectator reporter was hit with a $31,600 fine, the most severe penalty ever given to a Canadian journalist for contempt of court.

The refusal to identify his source and the subsequent conviction propelled Peters to the forefront of the debate over the right of Canadian journalists to grant confidentiality.

“I try to educate other journalists about the risks that are there because if this could happen to me it could happen to anyone of them,” said Peters.

On March 17, 2008 Peters received the good news he had waited for when the Ontario Court of Appeals overturned his conviction.

“Freedom of expression and freedom of the media, protected by . . . the charter, have a direct bearing on a journalist’s claim to confidentiality,” wrote Justice Robert Sharpe in the court’s decision.

“The media has a vital role in gathering and disseminating information in a free and democratic society…Canadian courts have recognized that journalist-informant confidentiality is important for effective news gathering,” he added.

Peters said of his victory, “The courts have recognized that in some cases journalists should be allowed to keep confidential sources…I’m heartened by that.”

Despite his ordeal Peters does not regret the stance he took.

“It was a very difficult experience, one that I don’t wish upon any other journalist. But looking back, I feel that I took the kind of action that I needed to take.”

The Stakes Are Raised

In April 2001, an anonymous source gave National Post reporter Andrew McIntosh a sealed envelope containing a loan approval document related to the Shawinigate scandal involving former Prime Minister Jean Chrétien.

Chrétien had been accused of pressuring the Business Development Bank of Canada to give a $615,000 loan to Yvon Duhaime in 1997. Duhaime had purchased Chrétien’s shares of the Grand-Mère golf club in St. Maurice, Québec and had not yet paid the Prime Minister.

In 2002, the RCMP obtained a search warrant and an assistance order against McIntosh’s former editor, Ken Whyte, ordering him to locate and handover the document. The National Post refused, opting instead to challenge the order in court.

In his affidavit in support of an application to quash the warrant and assistance order McIntosh explained why he had followed Shawinigate so closely.

“I was interested in learning how a federal bank had made such a large loan to a man with a criminal record and a history of failing to pay his income taxes,” wrote McIntosh.

McIntosh says that upon receiving the document in question he immediately understood its significance.

“We all realized that if the document I had received was genuine …it was extremely sensitive and its contents, if proven to be accurate, could have dire political and other consequences for the career of the Prime Minister,” McIntosh wrote.

Whereas Ken Peters was told to reveal the identity of the source who leaked him documents, the RCMP ordered McIntosh to hand over his document believing that they could ascertain the identity of the source through DNA testing of the envelope.

McIntosh says that he was asked by his confidential source to destroy the original document and the envelope it had been delivered in but decided to refuse the request.

“I told Confidential Source X I had taken steps to secure the document and the envelope but that I would not dispose of them.  I said this would be both improper and highly unethical…” wrote McIntosh.

While Peters was convicted and slammed with a heavy fine before eventually being vindicated, Andrew McIntosh initially received a favourable ruling in his contempt case only to be ordered to reveal his source by the Court of Appeals.

Superior Court Judge Mary Lou Benotto agreed to quash the warrants in a January 21, 2004 ruling.

“The media’s ability to effectively gather and disseminate news would be undermined if source confidentiality were not protected,” she wrote in her decision.

“If the journalist-informant relationship is undermined, society as a whole is affected. It is through confidential sources that matters of great public importance are made known.”

Having initially celebrated victory, McIntosh’s effort to protect his source suffered a serious setback when the Ontario Court of Appeals reversed Judge Benotto’s ruling on February 29, 2008.

“Journalist-confidential source privilege is not a blanket privilege. Journalists can never guarantee confidentiality.  There will be some cases – and this is one of them – where the privilege cannot be recognized,” wrote Judge John Laskin in the court’s decision.

The National Post has vowed to appeal the ruling at the Supreme Court of Canada. In an editorial printed on March 25, 2008, they articulated this intention clearly.

“The decision of the Ontario Court of Appeal strikes at the heart of the media’s ability to do their job. Fundamental constitutional rights must never be taken for granted. And so often, their protection relies on individuals and organizations being willing to fight for them. Fight we shall,” wrote the Post’s editors. 
 
Ethical Implications

As the legal battle over the right to protect confidential sources rages on, some media critics are questioning the professional and ethical implications of the often-used practice, and suggesting possible solutions to lessen the potential harm.

Bob Steele carefully condones the use of anonymous sources.

“There are those rare times when it may be necessary to use a source that is not attributed. It should be information that is of profound importance to the public and cannot be obtained through normal means of attribution.”

However, Steele warns that accountability is lost when sources are not named.

“Attribution is one hallmark of factual accuracy, you leave out names and you diminish the factual accuracy, the precision, of the story,” says Steele.

In order to mitigate the potentially harmful effects of lost accountability, some have suggested giving small details about a confidential source.

“There is value in giving the readers some information that helps them gauge and understand the position of the source, the validity of the sources’ perspective and in some cases their potential bias,” says Steele.

However, Steele warns news organizations must be careful when striving for “maximum identification”.

“We should be cautious, if you’re giving an individual protection of their identity you don’t want to blow that by inadvertently identifying them.”

Trust and Truth

In order for confidential sources to be used properly, the agreement to grant confidentiality must be rooted in trust and truth.

Sources must be able to trust that journalists will not reveal their identities and journalists must trust that their sources are telling them the truth.

Andrew Mitrovica, a contributing editor at the Walrus, says that a journalist has a responsibility to reveal, not defend, a confidential source if it becomes clear that the potentially damaging information they were given was false.

“If I am misled, then whatever agreement we struck to shield your anonymity is voided by your actions, there has to be some responsibility placed upon the source,” he says.

Citing confidential intelligence sources, Ottawa Citizen reporter Juliet O’Neill published a 1,500-word article in November 2003, which strongly suggested that Canadian citizen Maher Arar was guilty of terrorism.

Arar became a victim of a so-called “extraordinary rendition”. Identified as a terror suspect, he was arrested in New York and deported to Syria where he was imprisoned and tortured. He was later found to be innocent by the Canadian Commission of Inquiry.

The Prime Minister and the RCMP have apologized to Arar. Ms. O’Neill has not.

After RCMP officers raided her home seeking to learn the identity of her sources, many hailed O’Neill as a hero for refusing to reveal them.

Andrew Mitrovica is one of the only commentators to criticize O’Neill for publishing a damning indictment of an innocent man.

“Despite effectively having stamped the word terrorist on Mr. Arar’s forehead – a stain that is not easily removed – Ms. O’Neill and her many supporters in the media vehemently insisted that she was the victim,” wrote Mitrovica in a spring 2004 article in Media Magazine.

Mitrovica believes that O’Neill was not critical enough of the information she received from her anonymous sources.

“The piece of ‘investigative journalism’ could just as well been written by CSIS or the RCMP,” he wrote.

Mitrovica has little sympathy for O’Neill’s high profile government sources and believes that she should have identified them once it became clear that the evidence they had presented her with was false.

“I don’t even call them sources, I call them scoundrels. These are state officials who engineered an attempt to destroy a human being,” he says.

Mitrovica blames the lack of public criticism of Ms. O’Neill on a blind sense of solidarity amongst Canadian journalists.

“We live in a big country but the media landscape is quite small. It’s almost heresy to try to point an accusatory finger towards your colleagues, it just doesn’t happen,” he says.

Mitrovica believes that journalism as a whole suffers when reporters fail to criticize the indiscretions of their colleagues.

“Far too often the fourth estate doesn’t hold itself to the same measure of accountability and transparency that it does other powerful institutions,” he says.

Intentional Deception?

While the manipulation of journalists by their sources is a serious risk, potentially more troubling is the notion that journalists may use the anonymity of their sources to print careless work or intentionally misleading information.

In an interview with PBS Frontline, Seymour Hersh said of granting confidentiality, “sometimes it’s a way of disguising a weak source. I used to see that at the New York Times…”

Several major news organizations insist that at least one editor know the identity of the confidential sources used by their reporters. The New York Times, the Washington Post and the CBC all follow this criterion.

Steele supports this practice, believing that it can help prevent potential abuse.

“It can in some cases deter a fabrication. In that rare case where a journalist is making up a source and using the veil of anonymity to hide it,” he said.

Steele insists that the editor needs to be an active participant in the decision to grant confidentiality.

“It should be a part of the process, not a step at the end of the line where the editor asks, ‘who is that source?” Steele says.

However, as the McIntosh case has shown, sometimes an editor’s knowledge of an anonymous source’s identity only serves to get more people charged with contempt when a judge orders the source revealed.

The Coals Remain White Hot

While the ethical implications of using confidential sources are endlessly debated amongst journalists and media critics, legal clarity on the issue remains elusive as well.

The rulings handed down in the cases of Ken Peters and Andrew McIntosh have sent contradictory messages to Canadian journalists regarding the right to protect their sources.

However, with the McIntosh case set to appear before the Supreme Court of Canada it appears as if an authoritative decision may soon be handed down.

Though the issue has evoked strong emotions from all sides, Bob Steele wonders why it often takes a high profile trial for the rights of journalists to be defined.

“I’d like to think that the issues are pretty clear in these matters and it should not take a situation where the coals are white hot in the fire in order for reasonable people to make good decisions.”

HISTORIC STORIES UNCOVERED USING CONFIDENTIAL SOURCES

Canadian Examples

Agence de Presse Libre du Quebec break-in, 1972 Members of the RCMP Security Service broke into the offices of the left-wing group Agence de Presse Libre du Quebec and stole documents. An investigation by the Quebec Justice Department revealed that three officers had failed to obtain a search warrant, to which all three plead guilty.

Tunagate, 1985 John Fraser, the Canadian minister of fisheries under Prime Minister Brian Mulroney, was forced to resign after CBC’s The Fifth Estate broke a story that he had ordered a million cans of StarKist tuna to be released for sale to the public against the warnings of inspectors. The tuna, according to CBC, was so spoiled that it could not be used for cat food.

Lavish lifestyle of Hydro-Quebec officials exposed, 1996 Andrew McIntosh revealed the details of a 1995 farewell party for the outgoing chairman of Hydro-Quebec, the provincially-owned utility. Hydro Quebec’s profits were down 72% that year and the government had made substantial cuts to social services. The bill for the party exceeded $141,000.

Illegal Tobacco Smuggling, 1999 William Marsden, an investigative reporter at The Montreal Gazette revealed that Canada’s three major tobacco companies had facilitated illegal smuggling of tobacco products into Canada after government tax increases.

Exploitation in Toronto’s taxi industry, 1999 Peter Cheney, an investigative reporter for The Toronto Star revealed how insiders in Toronto’s taxi industry were growing rich at the expense drivers, the public and the city. The public outcry that followed the publication led to substantial reforms.

Dirty Dining, 2000 A Toronto Star series about unsanitary conditions in restaurants revealed a food inspection system that had ignored numerous food safety problems, closed no restaurants for two years and had issued fines to 11 restaurants. A four-month inspection was called immediately that led to 60 closings and over 100 charges laid against restaurants.

Vaughan slaughterhouse, 2000 The Toronto Star uncovered that an illegal slaughterhouse was being operated in Vaughan, Ontario. The slaughterhouse had no running water, refrigeration or proper sanitation. The Star reported that the slaughterhouse had never been visited by a government inspector. 
The Ministry of Agriculture, Food and Rural Affairs as well as the Ontario Society for the Prevention of Cruelty to Animals launched separate investigations.

Canada becomes haven for toxic waste, 2001 A Globe and Mail report revealed that hazardous-waste dumping from the U.S. into Canada had increased fivefold between 1993 and 1999. The report revealed that Canada is accepting more than twice as much hazardous waste from the U.S. as Mexico.

Nortel Networks, 2004 Nortel Networks was the subject of numerous stories when the U.S. Securities and Exchange Commission and the Ontario Securities Commission began investigating financial restatements that said the company was doing well despite internal discussions about a market downturn. 
The company’s calculated profit for 2003 had to be downgraded by 50 per cent. An RCMP criminal investigation soon followed and Nortel cut 3,500 jobs, as well as seven people from its finance department. Legal action was brought against CEO Frank Dunn, who was fired in 2004.

Airbus affair, 2007 Former Prime Minister Brian Mulroney and former Newfoundland Premier Frank Moores were accused of taking kickbacks from German-Canadian arms dealer Karlheinz Schreiber related to the sale of Airbus planes to Air Canada, at the time a Crown corporation. 
Mulroney sued the government and received a settlement of $2.1 million. However, the allegations of taking a kickback resurfaced in 2007 when Schreiber filed an affidavit showing his intention to sue the former Prime Minister for services not rendered.

American Examples

The Pentagon Papers, 1971 Detailed history of US involvement in Vietnam commissioned by Robert McNamara. Revealed that the United States government deliberately expanded its role in the war with airstrikes against Laos. 
Leaked to reporter Neil Sheehan of The New York Times by Daniel Ellsberg.

Watergate, 1972 Scandal that led to the resignation of President Richard Nixon. 
Washington Post reporters Carl Bernstein and Bob Woodward relied extensively on anonymous sources, the most famous of whom became known as “Deep Throat.”

Iran-Contra, 1987 Scandal in which high-level members of the Reagan administration were involved in the illegal sale of weapons to Iran. The proceeds of the transaction were then funneled to counter-revolutionary forces in Nicaragua.

Korean War Massacre, 2000 Associated Press reporters revealed that American soldiers had killed hundreds of Korean civilians in a massacre in the beginning of the Korean war.

The Valerie Plame affair, 2005 New York Times reporter Judith Miller was convicted of contempt of court and jailed for 85 days after refusing to surrender evidence related to the outing of CIA agent Valerie Plame.

Secret CIA prisons, 2005 Dana Priest of The Washington Post published an article revealing that the CIA had transported Al Qaeda terror suspects to secret prisons in Eastern Europe for interrogation. 
            
BALCO case, 2006 The Bay Area Laboratory Co-Operative was found to have supplied professional athletes with growth hormones. 
Two San Francisco Chronicle reporters were jailed after refusing to reveal the source that leaked them transcripts from a grand jury investigation of BALCO.

Offensive Journalism Fuels Facebook Advocacy


So you’ve been offended by a journalist.

Maybe it was Mark Steyn’s assertion that Islam is taking over the world that got to you. Or Ezra Levant’s reprinting of the Muhammad cartoons. Or perhaps you simply disagree with Terry Milewski’s portrayal of the Indo-Canadian community.

What’s your next step?

One option that’s become increasingly popular is filing a human rights complaint. Steyn has had such complaints lobbied against him in both Ontario and British Columbia. Ditto for Levant in Alberta.

Another means of recourse for the offended party is a civil suit. After Milewski’s Samosa Politics aired on CBC’s The National, the network was hit with a $110 million lawsuit by the World Sikh Organization. The WSO alleged the piece had slandered not only its reputation but also the reputation of the Sikh community as a whole.

A CRTC complaint, if applicable, is a third option. The Canadian regulator prohibits licensees from broadcasting “any abusive comment that, when taken in context, tends to or is likely to expose an individual or a group or class of individuals to hatred or contempt on the basis of race, national or ethnic origin, colour, religion, sex, sexual orientation, age or mental or physical disability.”

There are letters to the editor. There are letters to your MLA. And there’s always heading down to an organization’s official headquarters for an impromptu protest.

But one response to offensive journalism that’s gained a lot of steam in recent years is online advocacy journalism.

The most famous example might well be the Killian documents that led to Dan Rather’s departure from CBS. On September 8, 2004, in a segment on 60 Minutes Wednesday, Rather told the story of President George W. Bush’s preferential treatment when he was a member of the Texas Air National Guard. Supporting the story was a series of memos purported to be from Bush’s commander, the late Lieutenant Colonel Jerry Killian.

A number of online right-wing advocates, from influential bloggers to their anonymous readers, were convinced that the papers were forgeries filled with lies. These people set about proving as much, pointing to the fact that one of the fonts used in the memos didn’t even exist when the documents were said to have originated. Others recreated the exact papers in Microsoft Word with little to no effort.

While CBS originally disputed the claims – former network executive Jonathan Klein went so far as to dismiss the advocates as “a guy sitting in his living room in his pajamas writing” with no credibility – the network soon realized its documents couldn’t be verified and admitted its mistake. The advocates had won.

While much has been made of this victory for the bloggers, a new attempt at online advocacy journalism – one gaining in popularity by the hour – has been largely ignored. I’m talking, of course, about Facebook.

Facebook is, in its own words, “a social utility that connects you with the people around you.” It boasts more than 70 million active members and the social networking site generates the fifth-most traffic of any webpage in the world.

Any Facebook user can create a group and the site currently hosts more than six million of them. The topics range from the popular 1990s television show Saved by the Bell to the writings of Tolstoy to the starvation of children in developing countries. And whenever an event of any consequence takes place, a Facebook group expressing a viewpoint on that event surfaces within a few hours, at most.

If we use Mr. Webster’s traditional definition of journalism, Facebook groups certainly don’t fit. “The collecting and editing of news for presentation through the media” implies a level of preparedness and professionalism that these groups generally lack. An obligation to truth and loyalty to citizens – two elements Bill Kovach and Tom Rosenstiel identify as critical to journalism – are also not inherent.

But if we look at Facebook groups as advocacy journalism, as “journalism that advocates a cause or expresses a viewpoint,” often through non-objective means, then the idea isn’t quite so far-fetched. Facebook groups often attempt the same grassroots muckraking as advocacy journalists.

Offensive journalism is a real factor in the rapid creation of these online groups. Someone somewhere sees or hears a report they take offense to. Before long, a Facebook group is born.

“Mark Steyn is a waste of the printed page…”

“Ezra Levant is a moron.”

“CBC SLANDERS SIKHS AND THE SIKH COMMUNITY.”

These are just three of the groups that are dedicated to the journalists mentioned in the very beginning of this piece. The titles are undoubtedly aggressive, as is each group’s overall message.

But just as offensive journalism spurs advocates on one side of the debate, it frequently advocates on the other side of that same debate. Both Steyn and Levant, insulted in the aforementioned groups, are heralded in others dedicated to preserving free speech.

“Defend Free Speech in Canada – The Case of Mark Steyn” has almost 1,000 members. Its creator writes that he started the group “to raise awareness about the chilling effects on free speech the human rights complaints against author and columnist Mark Steyn will have.”

“Support Free Speech; Support Ezra Levant” has over 1,100 members of its own. Its administrator established the group to not only defend Levant, but also to “reinforce the idea that [Canada is] a country that supports the freedom of speech, freedom of thought and freedom of expression.”

Facebook’s official stance has been somewhat mixed. Its policy on the creation of potentially slanderous groups comes across as airtight, at least at first.

“Note: groups that attack a specific person or group of people (e.g. racist, sexist, or other hate groups) will not be tolerated. Creating such a group will result in immediate termination of your Facebook account.”

The website offers a “report” feature that lets users flag inflammatory material but Facebook has proven slow to react to these reports and even slower to delete said material. Thousands of groups that violate the company’s terms litter its site, popping up at a rate that makes them difficult to sufficiently police.

While professional media watchdogs, such as the liberal Media Matters or the conservative Media Research Center, must choose their words carefully because they can be held accountable for them, the same simply isn’t true of Facebook advocates. The harshest penalty for most of these individuals is having their account temporarily deactivated. As a result, Facebook has become a haven for anti-journalism and anti-journalist attacks that are arguably, and ironically, offensive.

But is anyone taking these groups seriously? Not so much at the moment.

With blogs, there was a feeling-out period that lasted for several years. While they were read as early as the mid-1990s, blogs weren’t particularly well-respected at the time. Early variations tended to be either glorified rants or public diaries.

It wasn’t until 2002 that blogs gained even an ounce of respect as a means of advocacy journalism. On December 5 of that year, then Senate Majority Leader Trent Lott attended a party honoring former presidential candidate, Strom Thurmond. Lott told those in attendance that if Thurmond, who was a strong supporter of racial segregation, had been elected president, the United States “wouldn’t have had all these problems over the years.”

Bloggers, offended not only by Lott’s comments but also by the mainstream media’s unwillingness to run with the story, let their feelings be known. The advocates forced Lott to resign two weeks later. While the Killian documents brought blogging to the spotlight for many, it was the Lott incident that opened the door in the first place.

Facebook groups need a similar rallying point. Too many represent what blogging did in its early stages: journalism run amok.

In 2000, Sue Careless, a member of the Canadian Association of Journalists and a supporter of advocacy journalism, was invited to speak at the CAJ’s panel in Halifax. Careless supplied a set of rules for advocacy journalists to follow. Among her most important were:

1) “If you only spout slogans and cliches, and rant and rave, then you are not doing honest journalism. You need to articulate complex issues clearly and carefully.”

2) “Can a journalist have a declared bias and still practice journalism in a professional manner? Yes. In fact you may be seen as even more credible if your perspective is acknowledged up front.”

3) “A journalist writing for the advocacy press should practice the same skills as any journalist. You don’t fabricate or falsify.”

4) “If you are covering a protest and a demonstrator hits a police officer or shouts profanities, you are obliged as a journalist to report those facts, embarrassing though they may be to a cause you personally support.”

5) “A good journalist must play devil’s advocate. You must argue against your own convictions. In an interview, you still have to ask the hard questions of possible heroes, the tough questions even of the people you admire.”

Most of us are able to immediately identify a blog that meets these five tenets. But a Facebook group? It’s not quite as easy.

While Facebook advocacy can be a response to offensive journalism, it cannot yet be identified as advocacy journalism. The groups and the messages just aren’t refined enough. Too many are about settling scores rather than providing the relevant facts. Given the ease with which Facebook allows its members to create these groups, it might be quite some time before this is no longer the case.

And that might actually be to the benefit of journalists everywhere. As long as these groups continue to make their points through insults and irrationality, journalists will not have to ask the tough questions on why the groups are being established in the first place. Whether or not the disputed works are truly offensive remains an issue for another day because Facebook has yet to prove itself as worthy of such discussion.

Who’s to say what you can say?


Two groups, both representing core democratic ideals, are at complete loggerheads with each other over the issue of freedom of expression in Canada. Civil libertarians are on one side and human rights advocates on the other. Both are competing to determine what should be the limits to free speech.

The debate was sparked by an article published in Maclean’s magazine called The Future belongs to Islam by a regular contributor named Mark Steyn.

The article treated Muslim immigration and birthrates as a problem Western countries had to deal with. “Islam has youth and will, Europe has age and welfare,” Steyn wrote. Many groups and people were offended by it.

Ten months later a group of Muslim law students met with Maclean’s management to complain about the article. The meeting didn’t end well and the students together with an organization called Canadian Islamic Congress (CIC) [www.canadianislamiccongress.com] filed a complaint against Mark Steyn and Maclean’s with the Human Rights commissions of Ontario, British Columbia and Canada.

Many journalists cried censorship.

Free speech advocates claim that what’s at stake is no less than the power to sanction freedom of expression and who should hold that power in Canadian society. The fear is that people will use complaints to human rights commissions and other agencies as a punitive means of stifling that freedom.

Most of the heat is directed at the Human Rights Tribunals, the bodies that adjudicate the complaints. 

The Canadian Human Rights Tribunal was created by Parliament in 1977 and has “a statutory mandate to apply the Canadian Human Rights Act based on the evidence presented and on the case law”. Advocates claim that people can file a complaint with the Tribunal merely on the basis of being offended and worry that it constitutes a dangerous precedent.

Much of the flame fanning in this case was done by Steyn himself. The writer, known for his straight talking and, some might say, callous style of writing and lack of sensitivity or regard for political correctness, has done much to bring this topic to the general awareness. Aside from writing the original article that sparked the debate, he continues to comment on it, in his characteristically grating tone, on his blog www.steynonline.com and in commentary articles in Maclean’s. “While the career benefits of free-speech martyrdom are perhaps not quite as lucrative as Kevin Baker assumes, I do take a quiet satisfaction in knowing that, publicity-wise, the last three months have been the worst in the entire existence of the ‘human rights’” commissions,” wroteSteyn on March 26.

But Steyn is not alone in his quest; blustering support has been provided by Alberta newsman Ezra Levant.

Levant, the publisher of the now defunct Western Standard, has himself faced a human rights process after a Muslim reader complained about the publication of the Muhammad cartoons in his paper to the Alberta Human Rights Commission. Not one to be cowed into submission, Levant lashed out fiercely at the commission, taking an absolutist stance against any attempt to limit his speech.

“I am here at this government interrogation under protest. It is my position that the government has no legal or moral authority to interrogate me or anyone else for publishing these words and pictures,” said Levant in his opening remarks to the Alberta Human Rights Commission inquiry in Calgary. The complaint against him was eventually withdrawn by the plaintiff.

Coming to Levant’s and Steyn’s aid are civil liberty groups, journalism associations, and writers associations. Some people are concerned that it will become too easy for critics to suppress opinions. Journalists in particular are worried about the possible implications to their work.

The common goal of these parties is to curb the authority of the Human Rights Tribunals to adjudicate in matters of free speech. 

Less welcome support has come in the form of lauding by right-wing extremists. Groups like the Heritage Front, Western Canada for Us, and the Canadian Heritage Alliance have come to the aid of Steyn and Levant, presenting themselves as fellow victims in governments’ attempts at stifling free speech. These groups and others like them have in the past been charged with human rights violations through the tribunals and are now quick to claim that their inalienable freedoms have also been stripped.

This unconventional solidarity may be a result of the case record of the Human Rights Tribunals.  

For the last dozen or so years, the tribunal’s docket as been filled with complaints filed by a single individual. Human rights lawyer and former Canadian Human Rights Commission employee Richard Warman, has built up an impressive case history by filing complaints against white supremacist groups or individuals that publish discriminatory messages against minorities on the Internet.

Every single one of Warman’s complaints have been upheld by the tribunals under a provision in the Canadian Human Rights Act stating that “it is a discriminatory practice for a person or a group of persons acting in concert to communicate telephonically [including the use of the Internet] or to cause to be so communicated, repeatedly … any matter that is likely to expose a person or persons to hatred or contempt by reason of the fact that that person or those persons are identifiable on the basis of a prohibited ground of discrimination [S.13 (1)].”

Viewed by some as a hero, Warman is characterized by others, including Steyn and Levant, as a serial abuser of the Act. 

Due in large part to Warman and others that practice the same methods, the Human Rights Tribunals have developed a reputation amongst civil libertarians for being biased against free speech. They argue that the threshold of admitting evidence is too low, that the tribunal members are not judges and that unlike in a criminal trial, in the Tribunal, the truth is not an acceptable defense.

At the same time, the Tribunal is limited in the sanctions it can lay out. It is not allowed to incarcerate anyone and even its fining authority is limited to $10,000. Moreover, a finding of guilt by the tribunal carries far less of a social stigma than that of a criminal court.

Aside from section 13 of the Human Rights Act, Canada has several other regulations in place that limit free expression. Most of these were designed to protect individuals from the negative impact that is potential in speech and publication. These include laws relating to libel and defamation, protection of privacy, a law prohibiting the promotion of genocide and obscenity laws.

The law that free speech activists are now referring to as an example for a reasonable limitation to freedom of expression is the Canadian Criminal Code provision [319], which makes it a criminal offence to communicate messages that willfully promote hatred against an identifiable group. The irony is that before it was passed and upheld in the Supreme Court, these same advocates fought against it. 

“Defenders of freedom of expression fought like hellcats to try to get this provision declared unconstitutional. Now they hold it up as an example of the right threshold compared to the Human Rights Code,” said Michel Vonn, policy director for the BC Civil Liberties Association.

The criminal code provision was tested in the landmark case of R. v. Keegstra, in which an Alberta schoolteacher was found guilty of promoting hatred against an identifiable group by communicating anti-Semitic statements to his students. During class, he would describe Jews as a people of profound evil who had “created the Holocaust to gain sympathy.” 

Overriding all these laws is the Canadian Charter of Rights and Freedoms and it is in relation to it that all laws are examined.

In the Keegstra case the defendant along with interveners argued that section 319 of the Criminal Code was unconstitutional because it violated section 2(b) of the Charter, which guarantees freedom of expression.

After lengthy deliberation the court ruled that while the provision did indeed violate the charter, the violation was justified under section 1 of the Charter as the law had a rational connection to its objective, it was not overly limiting, and the seriousness of the violation was not severe as the content of the hateful expression has little value to protect.

Vonn thinks that Maclean’s Steyn case has the potential to have some real impact on the future of the Tribunals.  “The feeling is that it doesn’t matter which way Steyn is going to go, it’s probably going to get appealed,” she said. In which case we could see the constitutionality of the Tribunals examined.

Ontario’s Human Rights Commission recently announced it would not hear the case for jurisdictional reasons. But Steyn and Maclean’s are expected to appear before the B.C. Tribunal soon, most likely accompanied by a troop of lawyers. It remains to be seen whether the Canadian justice system has the power to stymie the prolific verbiage of Canada’s news professionals.

International perspectives on offensive journalism


What offends you? The dead body of an Iraqi child? The irreverent use of a religious symbol? The boiling down of modern geopolitics into a simple formula of ‘us’ versus ‘them’? Or how about the word ‘damn’?

You may not have a hard and fast answer. Indeed, defining offensive is often a case of knowing it when you see it. Which is what makes it such a guessing game for editors considering whether what they publish might elicit their readers’ ire. 

The question of what’s too offensive for publication has always been a matter of contention in newsrooms. But a number of recent high-profile cases have brought that debate to living rooms across Canada.

The human rights complaints filed by a group of Osgoode Hall Law School students against Maclean’s and the conservative provocateur Mark Steyn charge that his article The Future Belongs to Islam promotes Islamophobia and is offensive to Muslims. 

The debate over Bill C-10 has also highlighted the limits of what’s deemed objectionable in Canada. Although the government claims the amendment to the Income Tax Act is just the closing to a legal loophole it would allow Conservatives to shut down production of films — and documentaries — deemed offensive.

Then there was the uproar over a rant  by Vancouver radio columnist Bruce Allen, who told immigrants, “If you choose to come to a place like Canada, then shut up and fit in.” Minority groups called for his resignation from CKNW radio, his firing from his role in the 2010 Olympic Games, and, at the very least, an apology. 

So what is it? In Canada, there’s no law against being offensive, despite what opponents of Bill C-10 might say.  But in the court of public opinion – where, after all, journalism dwells – groups are increasingly voicing their outrage at content they find offensive.

The degree to which editors should care whether what they publish is offensive is a well-trodden debate that I’m not going to enter here. The question I think still needs answering is the one I began with: Just what is offensive journalism? 

To try to get a grasp on the term, I called up Shakuntala Rao, a journalism ethics professor at SUNY University in Plattsburgh, New York. 

She took no time in identifying the core problem of the term ‘offensive’: its slippery and subjective nature.

“Offensive journalism to me is like tabloid journalism,” Rao said, using the example of recent media scrutiny of Eliot Spitzer’s sex life. “The ethical issues get much more murkier when you talk about journalism that can offend. Because you can say anything can offend anybody. You can fall into a trap, a sort of relativist trap.

But if that’s the case, you’ll never be able to report on anything.”

But the absence of consensus on what’s offensive doesn’t mean journalists can just eschew any consideration of their audience’s sensibilities. Indeed, Rao said all journalists across the world take into account how audiences might perceive their reporting.

“Wherever there is journalism, there is self-censorship,” she said.

Race and Religion

Rao, who once worked as a journalist in her native India, said self-censorship takes on different forms relative to the culture of a region. 

In India and Pakistan, for example, journalists are extremely concerned with offending religious minorities when reporting on already volatile situations. “In any of the workshops I’ve done, they’ll say that…anything that has to do with religions, religious communalism, religious violence, cannot be printed or published unless we have a peer discussion,” Rao said.

Generally, she said, religious references are kept to an absolute minimum in Indian and Pakistani journalism. “The last thing you want to do is fan the cinders of hatred that are existing,” she explained. For example, the religion of a criminal suspect will usually not be included in a story. This can be tricky since in India religious and caste affiliation are closely tied to names. Sometimes, then, even the name of a suspect will be withheld from media reports.

“American journalists have this incredible leeway, even in questions of religion,” Rao said. However, she added that similar taboos exist in American media around questions of race. “Again it’s that majoritarian, minoritarian issue,” she said. “When do you identify the race of a perpetrator or the race of a criminal?”

Dead bodies

Although US journalists may sometimes seem freer to offend, Rao pointed out that in the case of showing graphic images of death, media in India are far more brazen. 

She pointed to an example of a child who was abused at his school in an Indian village.
“This child goes to school and he’s beaten up by his teachers.  He’s beaten up so severely that he dies,” she said. “So the parents actually bring the body for display to the cable channels.” The graphic images of the dead child became a major part of a news story about the abuse of children by untrained teachers at rural schools.

It’s hard to imagine the same happening in the U.S. or Canada. In 1993, Oregon’s Eugene Register-Guard tested their audience’s tolerance for images of dead children when they published a front-page photograph of two-year-old Shelby McGuire being carried out of her house by police. Her father had taken her hostage and police found her with a grocery bag over her head. After the decision was made to run the photo, Shelby was pronounced dead and the Register-Guard was flooded with hundreds of angry phone calls.

“If we were presented with a similar situation and a similar photograph today, we would absolutely not do it the way that we did in the Shelby McGuire case,” assistant managing editor Jim Godbold reflected later. His reticence was based on community “boundaries”, rather than newsworthiness, since the photograph did much to illustrate a spate of child abuse deaths in the county.

But in India, Rao said, there would be little concern that images of dead children would offend audiences. “In India, people have a very different relationship with death itself,” she explained. “There’s a lot of tolerance for it. [Indians are] just more likely to be seeing more dead bodies, period… they carry them publicly, it’s not hidden like here.”

Offending the powers-that-be

I hung up from our conversation more confused than ever. Offensive journalism could be tabloid trash, it could be dead bodies of children, or it could be racial and religious references. And it all depends on who and where you are.

But there’s a lot more to consider than the sensibilities of Americans, Indians, and Pakistanis. So I sent out emails to a handful of international journalist contacts, asking them what was considered offensive journalism in their countries.

And surprise — things got even more complicated. 

Warsaw Business Journal editor-in-chief Andrew Kureth told me that in Poland,  “offensive” often means insulting to the President, as it’s possible to be prosecuted for “insulting symbols of the state” — including heads of state. Although Polish journalists are careful about what they say about the President, Kureth said the line is always being tested.

“Just this week we are publishing a cartoon in which we depict the President refusing to sign the Treaty of Lisbon because it is ‘perverse blasphemy’, while someone is whispering in his ear, ‘Mr. President, it’s Lisbon not lesbian’ (the President and his party are known for their anti-gay views),” he wrote in an email. “I do, however, fear repercussions. We’ll see what happens. We have steered clear of cartoons which depict the President as, for example, a dog and – god forbid – a potato.”

Images that degrade the Catholic Church are a huge red flag in Poland, even for tabloid journalism.

“In such a Catholic country as Poland, one has to tread lightly around the Church. Of course, we have printed editorials criticizing the Church — but I would steer clear of any image of Jesus on the cross for example, for fear of offending readers,” he wrote. 

A country’s dominant religion sometimes holds a special place in journalistic taboos. The UAE Journalism Code of Ethics, for example, contains this clause: “Islam is a basic and important component of UAE culture, values and traditions, and the respect of divine religions and traditions and values of nations takes centre stage at the mandatory code of ethics of the media and should not be offended or desecrated by any forms.”

Sex and Violence

When I asked China Daily columnist Raymond Zhou what he thought was too offensive to publish, the first thing he mentioned was sexually provocative images. Times are changing in China, however, as was clear in the media frenzy surrounding the recent Hong Kong movie star sex scandal. 

“[Twenty] years ago I would not even mention certain things such as sexual organs or sexual acts, but nowadays I would do it, if necessary, but use words that are acceptable to most people,” Zhou wrote.

Rodolfo Fernandes, the executive editor of Brazil’s O Globo at http://oglobo.globo.com, pointed to sex and violence as contentious issues for journalists.  

“I think that [Brazilian media] are more cautious when reporting news involving the intimacy of people in general than, for example, the British or US press,” Fernandes wrote. “But certainly they are more prudent in coverage on violence than our media.”

Even so, Fernandes said, reporting violence must be weighed against the public interest of a story. A recent tough call he had to make involved a story and photos about drug dealers in a dangerous slum. “The story, itself, was very controversial because of the violent environment and details of cruelty,” he told me. “But we decided to publish [it] as an alert to society and police forces.”

No consensus? No kidding!

The only clear picture I got out of my decidedly unscientific survey of international journalists was that there is no consensus when it comes to what’s too offensive to publish.

For some, the line is drawn at coverage that could marginalize minority groups, or incite percolating tensions. For others, the decision is more about disrespecting a society’s most sacred or powerful institutions.

And often, it just comes down to anticipating the squeamishness of your audience — which is, of course, as varied within as between nations.

The international vagaries around the term offensive are instructive for Canadian journalists mired in the debates I mentioned at the beginning of this article. Although recent controversies in Canada have centred around insult to minorities, rest assured that the other standards of decency identified by international journalists are also reflected in a nation so multicultural as Canada.

What’s more, the meaning of ‘offensive’ is constantly in flux, as is chronicled in historical works such as Semonche’s Censoring Sex, which traces the development of representations of sexuality in American media. ‘Offensive’, then, is a term constantly negotiated between journalists and their readers. It can be a useful rallying cry for those that feel wronged. It can be the beginning of a conversation.

But what ‘offensive’ is not is written in stone. 

As Canadians continue to hash out just where they draw the line of what should be published by our media, we ought to start identifying some better definitions of harmful journalism. ‘Offensive’ has become far too flimsy a term to dictate something so serious as restricting freedom of expression.

Journalists who retell violence relive trauma, too


When he was sent to cover the war ravaging Sierra Leone, reporter Ian Stewart had little knowledge or interest in the conflict – until he saw it unfold before his eyes.  

On November 10, 1999 a child soldier shot Stewart in the head. 

The bullet left him with paralysis and some brain damage.

It was then that Stewart, former West African Bureau Chief for the Associated Press, realized that journalists are not passive observers. They are active participants who impact their surroundings and whose surroundings impact them. 

In February, the University of Western Ontario hosted the Canadian Journalism Forum’s inaugural conference, Journalism in a Violent World. 

The conference welcomed reporters, producers, news managers, media analysts, journalism instructors, students, and mental health professionals. They discussed the impact of violence and emotional trauma on journalists and their audience. 

“It is emotionally taxing to relive violence through our notebook, our lens or our darkroom,” says Stewart.

Stewart faced violence every day he reported in Africa. He says he felt a sense of failure as he wrote stories about rebels who killed and raped innocent people daily, while his articles were never picked up by any of the 1600 North American newspapers that subscribed to the Associated Press wire service at the time.

He read from a journal entry he wrote while in Sierra Leone, “Why should God care if we don’t?” he asked.  It was not until Stewart was shot that the world paid attention to the stories. This added to his sadness and distress.

Stewart was later diagnosed with Post Traumatic Stress Disorder (PTSD).

According to Dr. Anthony Feinstein, a professor of psychiatry at the University of Toronto, rates of PTSD among reporters are 25 to 28 percent compared to the general population who experiences PTSD at rates closer to four or five percent.  

Feinstein explained that for many years there was a “culture of silence” about how covering crime, war, and accidents impacts journalists.

“Journalism is not a profession that is governed by a professional body or code like the medical profession,” says Cliff Lonsdale conference co-organizer and television journalism instructor at UWO. As a result, questions on how to deal with traumatized journalists have flown below the radar and, subsequently, journalists have often been left to fend for themselves.

“For years we didn’t pay nearly enough attention to what these violent situations were doing to our journalists short of getting them killed. Similarly, we haven’t paid much attention to how we extract these stories from victims who have survived traumatic situations,” Lonsdale says.

Documentary filmmaker, Giselle Portenier agrees. She shared her views on the ethics of interviewing the victims of social cleansing, rape and violent regimes.  She emphasized the importance of sensitivity toward victims during the interview process and ensuring that they will not become more vulnerable as a result of speaking publicly about their story. 

She followed death around the world, producing documentaries about violence against women in Guatemala, social cleansing in Colombia and honour killings in Pakistan but Portenier says she is most haunted by her memories of the survivors.

The conference served as an illuminating experience for journalism students who may find themselves in similar situations one day soon.

“I think that the awareness factor has been left out of the equation for many years,” says Anna Drahovzal, journalism student at Western. “We got to understand the impact of trauma first-hand. You can see it in them, on their faces, in their stories,” she says.  Awareness that journalists need to look out for themselves and their colleagues is something Drahovzal believes students learned from the conference.

Unlike soldiers and first response teams, journalists are not formally schooled in dealing with the violence they may witness or endure. As such, journalists who have been traumatized often ignore or hide how much they have been impacted by what they have seen.

CBC cameraman Brian Kelly shared the story of how his co-worker Clark Todd was wounded and killed during heavy crossfire in Lebanon in 1983.  Kelly and the rest of the crew had to leave Todd behind. 

For a long time, Kelly thought he was fine and continued with his life and his career.  One day in an edit suite, moments before he was set to shoot an interview, Kelly broke down and cried for hours.  It was then that he realized the profound impacts of all that he had witnessed.  For a long time he could not utter a word about Lebanon without crying.

Kelly recently went back to Lebanon to the scene of the incident for the first time since Todd’s death.  The trip he said, did not offer him closure. 

“Closure implies that it ends,” says Kelly.  “But you never leave it behind.”

Now, Kelly participates in various simulation exercises with other journalists to prepare them for the field and the possibility of a traumatic or dangerous situation.

Since he was shot in 1999, Stewart left his job as a reporter for the Associated Press. He is now a PhD student at the University of Michigan where he studies the impacts of trauma on journalists.

“It’s time we do something to make people realize how our jobs impact us,” says Stewart.

As a result of the conference, the Canadian Journalism Forum plans to expand its reach, making it capable of gathering resources for news managers, journalism instructors and journalists.

Conference co-organizer, Lonsdale plans to establish a board of trustees to ensure that the forum remains sustainable.

“I think there is a responsibility for the leaders in the profession to take an interest in what we do and encourage more responsible practices surrounding the impact of violence and trauma on journalists,” says Lonsdale.

“We especially have a responsibility to the younger generation to make things better in our profession.”

Anna AbouZeid is currently completing her Master of Arts in journalism at the University of Western Ontario. She is specializing in radio journalism but has a strong passion for both broadcast mediums. Anna hails from Winnipeg. She completed a BA with honours in political science from Acadia University, Nova Scotia and an MA in political science, University of Western Ontario.  She recently completed an internship at CBC Newsworld’s News Today. Anna hosted and co-produced two current affairs shows for Western’s radio station CHRW, which is broadcast across southwestern Ontario. She loves politics and travel and would love to do international reporting one day.