If the role of the journalist is to investigate matters considered to be in the public interest then it is essential that reliable channels of information are constantly available. If the information the journalist requires to report in the public interest can only be acquired by maintaining the confidentiality of its source then the sources identity has to remain secret. The public interest and the confidentiality of sources are, therefore, interlinked.
Unlike the National Union of Journalists (NUJ) who unequivocally state that a journalist “Protects the identity of sources who supply information in confidence,” (Code of conduct article 7) the Press Complaints Commission (PCC) introduces an ethical dimension stating that “journalists have a moral obligation to protect confidential sources of information,” (PCC code clause 14).
By introducing the word moral into the code the PCC have opened up a debate about what is moral in relation to revealing the identity of a source. It could be argued that the inclusion of morality into the code has shifted responsibility away from the institution to the individual. The PCC is advising journalists to consider the morality of keeping sources identity secret while the NUJ is stipulating a clear and unambiguous rule.
It is possible that clause 14 could be interpreted to mean that a sources' identity should only be protected on moral grounds which may mean that there could be circumstances in which a journalist can ethically reveal a source’s identity.
While the ethical challenges raised by the moral obligation clause are acknowledged it will be argued that clause 14 of the PCC code puts both the identity of sources and the information they provide to protect the public interest at risk.
On the 27th November 2008 freelance journalist Robin Ackroyd won his battle with Mersey Care NHS Trust who was attempting to force him to reveal identity of his source. The source had provided Ackroyd information about Moors Murderer Ian Brady’s treatment in hospital.
The General Secretary of the NUJ, Jeremy Dear said, “We are delighted that this case can finally be closed. The fundamental point of principle - that there is a vital public interest in upholding journalists’ right not to reveal their sources - has been maintained.” (NUJ.org.uk 2007)
While the court found in Ackroyd’s favour the example illustrates how a case can pivot on what is considered to be in the public interest. In his concluding comments after considering the appeal the Master of the Rolls Sir Anthony Clarke, said:
“In all the circumstances, the judge was in our opinion entitled to hold that it was not convincingly established that there was in 2006 a pressing social need that the source or sources should be identified. He was also entitled to hold that an order for disclosure would not be proportionate to the pursuit of the hospital's legitimate aim to seek redress against the source, given the vital public interest in the protection of a journalist's source. It follows that we dismiss the appeal.” (Mersey Care NHS Trust v Robin Ackroyd – para 85 2007)
According to Sir Anthony Clarke and Jeremy Dear, the protection of journalistic sources is a vital public interest in its own right. The court, in this particular case, considered that without the right to keep the source secret, information may not be revealed to the journalist and there would be a risk that issues of public interests would not be properly investigated and reported.
This begs the question as to what it would take for the court to put its weight behind the plaintiff and decide that the greater public interest would be served by revealing the source.
All parties involved in the Ackroyd case are concerned to an extent with the public interest. The NUJ position adopted by Ackroyd was absolute believing that the public interest cannot be served without a right to keep sources identity secret. The Mersey Care NHS Trust’s ethical position was also absolute because they wanted to know who was in breach of their contract of employment and sought redress.
“Disclosure of information. You must not whilst you are employed or after your employment ends disclose to any unauthorised person information concerning the authority's business or the patients in its care nor must you make any copy, abstract, summary or précis of the whole or part of a document relating to the authority." (Mersey Care NHS Trust v Robin Ackroyd – para 192 & 193 – 2007).
Guided by the Human Rights Act 1998, which considers that an order to disclose a source contravenes the right to freedom of expression, the court weighed the two main principles and, on balance decided to dismiss the appeal.
In accordance with clause 15 of the PCC code and irrespective of the law, the ethical dilemma for the journalist is whether the public interest of medical records being kept private is outweighed by the public interest in having wrong doing exposed and corrected by the source.
Many journalists have defied the courts and faced jail prior to the Human Rights Act being adopted by the British courts. For example, Bernard Faulk was jailed for not naming a member of the IRA. Journalist Alex Thompson of Channel 4 News and Lena Ferguson, Thompson’s producer, were also threatened with custodial sentences when they refused to name British soldiers interviewed about Bloody Sunday (Keeble 2008 p98). Journalist Nick Martin Clarke, however, after promising to maintain the confidentiality of his source subsequently gave evidence in court that he had obtained in confidence.
Clarke clearly breached the NUJ’s absolutist position of never revealing a source. Considering, however, that the outcome of Clarke naming his source resulted in convicting a murderer the revelation of a confidential source may have been justified under clause 14 of the PCC code which states that: “journalists have a moral obligation to protect confidential sources of information.”
“Some have argued that Nick Martin-Clarke was acting in the public interest by informing on a notorious killer. We must take a broader view of the public interest than this. Sources must believe that a promise of confidentiality is as binding on a journalist as it is on a doctor, a lawyer, or a priest. Any weakening of that belief will result in sources drying up and countless issues of public interest may never see the light of day.” John Toner of the NUJ (Keeble 2008 p99).
It follows that The PCC code of practice may provide scope for balancing the ethical position in the public interest and permit on moral grounds a journalist to reveal a sources identity.
Martin-Clarke wrestled with his own individual morality, rather than sticking rigidly to the NUJ code, believing that preventing a murderer from being convicted is more important than keeping a source's identity secret.
The NUJ position is clear that betraying sources will reduce the numbers willing to provide information which will affect the press’s function as a public sphere, an arena where matters of public interest can be freely discussed by all. Silencing sources by breaching their confidentiality has wider implications for the freedom of speech and democracy itself. As academic Ian Hargreaves (2003:25) said: “I operate from the assumption that journalism matters not just to journalists, but to everyone: good journalism provides the information and opinion upon which successful democratic societies depend.” (Harcup 2007)
Martin-Clarke appears to put puts his personal morality above the wider public interest when he said: “An absolutist case on confidentiality is akin to total pacifism, or to not telling a lie even to save you’re a life. It is eccentricity that has little to offer the real-world of journalism. What if someone told you about a murder he or she was going to commit? Martin- Clarke (Keeble 2008).
For views to differ so widely it is clear that morality is a very individual matter. In a multicultural and highly stratified society, such as Britain’s, opinions are bound to differ making it impossible to establish with any certainty what is in, the universal public interest. After all, if there were universal morality the PCC and NUJ codes would not need to make rules for journalists to follow there would be one “natural” law.
It is this tension between groups that has brought the media to the forefront of controversy and left journalist often sitting on the horns of a dilemma. The decision about how and what is investigated and ultimately published into the public domain, presents ethical difficulties for the investigative journalist.
For Martin-Clarke shopping the source that trusted him was not an easy decision, he had to weigh the moral implications. "It would have been easier to keep this secret my life has been disrupted, we have had to move house and I am now on a witness protection programme for the rest of my life." (Journalism Review 2003)
To make sense of these issues some time will be spent discussing philosophical reasoning surrounding the ethical challenges journalists face when considering the naming of confidential sources. The consequentialist philosophies of John Stuart Mill on utilitarianism will be employed together with the absolutist stance of Immanuel Kant.
Utilitarianism is a moral philosophy that is concerned with balancing outcomes from a particular action. Utilitarianism will be contrasted with the absolutist stance of Immanuel Kant who believed that we have a duty to act morally and concern ourselves with the actions, or inactions themselves rather than the utility of the outcome.
The aim of utilitarianism is to maximise human happiness. The right course of action, therefore, is one which takes full account of the consequences of an action and measures how much utility is produced. The action which produces the greatest happiness, according to Mill, is the action to take. “actions are right in their proportion as they tend to promote happiness and wrong as they tend to produce the reverse of happiness.” (Mill 1991 ednp.131 quoted in Warburton 1999).
For Mill all moral questions depend on the consequences of the action. Applying this to the Martin-Clarke case it is reasonable to suppose that he may well have believed that, by outing the murderer the aggregate human happiness would be increased. Martin-Clarke may have asked himself, will I save more lives by revealing the identity of my source than by not? Using utilitarian moral reasoning, if Martin-Clarke truly believes that his action will maximise human happiness, he may be morally justified in outing his source and is not, therefore, acting immorally.
It follows that, from a utilitarian perspective, the public opinion of the value of the source may influence the journalist’s decision and it may, or may not be justified to him to keep the sources identity secret. The difficulty with the utilitarian argument, however, is that people disagree profoundly about what is and what determines human happiness.
“One problem with utilitarianism is that it depends on who makes the decision. For instance one could justify killing of a homeless down-and-out who has no family in order that his organs could be donated to several desperately ill patients on the basis that four people could live with consequent benefits to their families for the loss of only one life.” (Frost 2007 p15).
For Immanuel Kant actions are independent of consequences and are simply right or wrong. Kant believed that what sets man apart from other animals was reason and that man is on a path to ascend to it. Once this universal state occurs then moral philosophy reigns supreme. For Kant if a person is to be moral he has to be autonomous and respectful of universal reason. For Kant morality has to be selfless, so, if outing the source is selfless then it is a moral act. As Frost (2007 p15) puts it. “Kant believed that a moral act was one that denied the self and followed only obligation.”
Applying Kantian moral philosophy to the Martin-Clarke case, if the journalist promised to keep the sources identity secret, but later named the source, then, to behave morally he would have to have had no selfish motive.
Further, for Kant, there is no moral obligation to do anything unless we can do it. There may be something outside of a person control that excuses his moral obligation – again the clause 14 of the PCC code can be overcome. Kant's categorical imperative to act to the will of the universal law fits better with the NUJ code that lays down a universal rule that sources should not in any circumstance be named. Journalists have a duty not to name their sources.
Kant may say that journalists have a duty not to name their source. In addition, given that Kant was an egalitarian he would have to give equal value to the source and would not consider the consequences of not naming him. Utilitarian’s, applying the greatest happiness principle, however, could consider the consequences of naming the source. For Kant it would be either wrong, or right to name the source, as Frost puts it: “He [Kant] thought that the end did not justify the means. Only by acting from duty could one be said to be acting morally, and the consequences are not something that could always be foreseen.” (2007 p16)
By using some recent examples from contemporary British media it has been shown that an investigative journalist works within a society composed of groups each acting in accordance with their own varying systems of values and beliefs. The morality of revealing sources for some is a matter on individual conscience and for others a question of balancing the consequences of one action, or inaction against another before arriving at the decision about which brings about the most utility. For others it is just plain wrong, or a categorical imperative whether, or not to name a confidential source.
Great emphasis is placed on keeping sources identity secret in order to maintain a public sphere into which information is placed so that the general public may be in a position to decide for themselves what course of action to take. Legal cases have been sited which indicate that protecting a sources identity is considered a vital public interest.
If journalism is to maintain an investigative function then is it crucial that there is continuous flow of reliable sources of information. Due to the sensitive nature of some of the information they provide it will be necessary for some sources to have their identities protected. By naming confidential sources the information required to maintain the public sphere and ensure that the press perform their function as the eyes and ears of the public is diminished.
It may be argued that the freedom of speech and democracy itself will be put at risk if confidential sources of information dry up. While clause 14 of the PCC code of practice is correct in that Journalist’s have a moral obligation not to disclose confidential sources of information, I believe clause 14 to be unnecessarily vague and because of this introduces the risk that the moral obligation to keep a sources identity secret, could be countered by a competing moral case to disclose a source.
It is my belief that the wider public interest is best served by a journalist always protecting the identity of their sources and it is for this reason that I disagree with clause 14 of the PCC code preferring instead article 7 of the NUJ code of practice that a journalist “Protects the identity of sources who supply information in confidence.”
The National Union of Journalists Code of Conduct (2008) http://www.nuj.org.uk/innerPagenuj.html?docid=174
The Press Complaints Commission Code of Practice (2008) http://www.pcc.org.uk/cop/practice.html
Dear, Jeremy, (July 2007) http://www.pressgazette.co.uk/story.asp?storycode=38367
Mersey Care NHS Trust v Robin Ackroyd (2007)
Keeble , Richard (2008) Ethics for Journalists, second edition, London/New York, Routledge
Hargreaves, Ian (2003:25) quoted in Keeble, R (2008)
Harcup, Tony (2007) The Ethical Journalist, London, Sage
Martin-Clarke Nick, (2003) “When a Journalist Must Tell”, British Journalism Review 14:35-39
Martin-Clarke Nick, (2003) quoted in Keeble R (2008).
Warburton, Nigel (1999) Arguments for Freedom, Oxford, The Open University.
Mill, John Stuart, (1991 edn p131) quoted in Warburton N.(1999)
Frost, Chris (2007), Journalism, Ethics and Regulation, second edition, Dorchester, Peason Longman
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