The limits of promising confidentiality

The ability to report the news often depends on the ability to protect the confidentiality of news sources. When a journalist faces a defamation suit based on information provided by a confidential source, however, the promise of anonymity to that person may prevent the reporter from relying on certain defenses.        

For example, because falsity is a key element of a defamation cause of action, the truthfulness of the allegedly defamatory statement is a complete defense to the claim. But proving the material in question is true becomes exceedingly difficult when the person who provided it must remain anonymous.

Likewise, a source’s identity could go a long way in helping to negate an allegation that a publisher acted with reckless disregard when relying on the source’s information.

In these situations, courts are likely to take one of several approaches in attempting to balance the rights and interests of a defamation plaintiff with those of a reporter:

• Most often, the judge will simply preclude the journalist from relying on the anonymous source for any part of his or her defense. This prohibition includes a bar on merely telling the judge or jury that the reporter did in fact have sources for the information.

• Courts may also allow media defendants to offer evidence that supports a confidential source’s credibility without revealing its identity. This evidence, however, can only be offered to show a publisher’s state of mind and not to prove the truth of the matter asserted. Moreover, some courts have held that the introduction of such evidence waives a reporter’s privilege to refuse to disclose the identity of sources, even when the journalist can claim a very strong privilege under the state’s shield law.

• Some judges will assume at the outset of the proceeding, and instruct juries deliberating the case to presume likewise, that there was no source for the information attributed to an anonymous source.

• In the worst-case scenario, a court could issue a default judgment against an author or publisher who refused to reveal a confidential source.

The use of confidential sources should be avoided whenever possible. Putting aside the legal implications, attributing information to unnamed people hinders your readers’ ability to assess the credibility of your sources and by extension you. Thus, your reliance on unnamed sources should be the exception, not the rule, and limited to those rare situations where, but for a guarantee of confidentiality to its source, information of significant public interest and importance would be shielded from public view. 

If you decide that information is sufficiently newsworthy to warrant a promise of confidentiality, consider the following tips, which may help protect you in a defamation suit based on the information:

• Discuss the scope of confidentiality with the source, establishing a clear agreement about when and to whom, if anyone, you will disclose the source’s identity. 

• Do not rely exclusively on confidential sources’ accounts. Verify or disprove their claims, or attempt to do so, by seeking and publishing comments from the subject of the information and other people somehow connected to it. If the subject of the information provided by the confidential source declines to verify its accuracy or otherwise comment on it, include a statement to that effect in your report. If possible, recount in the article any unsuccessful attempts you undertook to verify the information. At the very least, keep a written record of these efforts. In courts that prohibit sued journalists from relying on their anonymous sources for any part of a defense, these activities could negate an inference that a publisher acted with reckless disregard when relying on a confidential source, while still maintaining the source’s anonymity. That’s exactly what happened when a New York Post reporter was sued for defamation for an article based on confidential sources that said former New York Knicks basketball player Latrell Sprewell “took a swing” at a guest on his yacht at a marina in Milwaukee but hit a wall instead, injuring his hand. The trial judge denied the media defendant's request to dismiss the suit, holding that because the reporter exercised his right under the New York shield law to refuse to reveal the sources, he could not rely on the confidential sources to show he did not act with reckless disregard in publishing the article. The appellate court reversed this ruling, however, and tossed the case, noting that the reporter did not rely exclusively on information provided by confidential sources. Rather, he undertook additional investigative efforts “to verify or disprove the claims, by seeking comments from plaintiff, via his agent and publicist, and speaking with personnel within the Knicks organization, including the team coach, a public relations representative, and a confidential source, as well as seeking out three doctors, the Milwaukee Police Department, the Milwaukee Journal, and the McKinley Marina” -- activities that demonstrated the reporter “did not deliberately fail to seek confirmatory information or otherwise act with reckless disregard for the truth.”

• The court also noted that the confidential sources’ partial description of the interior of Sprewell’s boat provided additional indicia of their credibility and was thus further proof that the reporter acted reasonably in relying on it. Accordingly, it may be advisable to include details from or about a confidential source that, without disclosing its identity, boost its credibility with readers and, perhaps more significantly, offer additional evidence of your absence of actual malice in publishing the article.

• Make clear that you are not reporting the information as incontrovertible fact and caution the reader that it is based on material provided by a person who asked that his or her identity not be revealed.

• Keep the source’s identity secret from others, even those with whom you work closely on your online publications. Sometimes plaintiffs try to compel the identity of a confidential source from the reporter’s colleagues, with whom plaintiffs often assume journalists share the information. If these colleagues do not have the material to disclose, though, the issue, at least as to co-workers' involvement, is effectively resolved with minimum litigation costs.

• Finally, and arguably most importantly, if you promise a source you will not reveal its identity, you must be prepared to honor that guarantee or face legal consequences for failing to do so. The U.S. Supreme Court has held that the First Amendment does not shield from liability a reporter who breaches a promise of anonymity to a source who relied on that promise to its detriment and, as a result, suffered an injustice that should be remedied. Note that liability for an impermissible disclosure of a source’s identity extends only to information revealed of your own accord and not to information revealed in compliance with a legal obligation, including a valid court order compelling disclosure of the source’s identity. Many journalists, however, opt to honor their promises of confidentiality despite court orders to reveal the sources’ identities and thus face contempt sanctions, including jail time, for the refusal to comply.