To reveal sources? What does the public interest demand?
30 October 2018
In a country where freedom of expression, including freedom of the press and other media, is well-protected and enjoyed - at least on paper - can there ever be compelling, public interest reasons for journalists to reveal their sources?
South Africa was recently gripped by revelations emanating from the Commission of Inquiry into tax administration and governance at the South Africa Revenue Service (SARS) headed by retired Judge Nugent. Not least among the revelations is that the widely reported ‘rogue unit’ within SARS was in fact, the High-Risk Investigations Unit, lawfully constituted, with extensive search and seizure powers.
Such powers enabled tax assessments and recovery of illicit tobacco, drugs and counterfeit clothing worth more than R4 billion in the time of its existence. Despite this, the Sunday Times newspaper published a series of articles in which senior-ranking SARS officials were implicated in the establishment of a covert or “rogue” investigative unit that allegedly spied on former President Jacob Zuma and that set up a brothel aimed at infiltrating the governing party. The paper has since retracted the stories regarding the rogue unit and has tendered an apology.
Suffice to say, immeasurable harm has been done with regard to ensuring public trust in the media as a key ally in holding powerful figures to account and ensuring transparency as a key value of our constitutional democracy. It is apparent too that journalists belonging to the Sunday Times were fed false information, which the paper then ran, without having satisfied itself of the veracity of the information.
Sunday Times then became a tool to influence the minds of the South African public regarding the narrative of events unfolding within SARS. It is on this basis that some have called for individuals responsible for the publishing of the rogue unit narrative to appear before the Nugent Commission. In doing so, it is argued, the names of the individuals within SARS who were responsible for the rogue unit narrative will become known, as will their now exposed motives.
This would necessarily entail that journalists reveal their sources. But is this desirable?
Journalists, unlike the legal or medical profession, are not bound by a legal obligation to protect sources of information. There is, nevertheless, a general consensus that sources to whom an undertaking of confidentiality is given, need to be protected from their identity being made public. This suggests then, that at the very least, the real name of the source will be kept away from the public. The South African Press Code provides that the media shall protect confidential sources of information.
The Code further provides that the media shall not publish information that constitutes a breach of confidence, unless the public interest dictates otherwise. It stands to reason therefore, that there are exceptions to the general rule that sources who so desire, be kept confidential. When sources have lied, as was the case with the Sunday Times, journalists are no longer obliged to abide by the commitment to secrecy and may therefore reveal their source.
In any event, the relationship between the journalist and the source of the information is a contractual one, based on the understanding that the information is true. Once the information is proven to be false, then it stands to reason that the contract no longer holds and the journalist is then no longer obliged to keep the source of the information secret. It is therefore in the public interest that the identities of the sources be made known.
It is still important to underline the fact that the protection of sources should remain as the default position. It holds true that if informants are unable to trust journalists with confidentiality, they will no longer be forthcoming, leading to less information being public knowledge. In turn, this has implications for the health of a nation’s democracy. It is a fine line that journalists must tread in the decision of whether to reveal sources.
It remains incumbent upon journalists to corroborate and verify information from sources without revealing the identity of the source. Journalists have a further duty to sift through any possible agendas of sources. All of this must happen within the understanding that because media freedom is enshrined in the Constitution, democracy confers on them, according to Guy Berger, a special status, privilege, and responsibility regarding the confidentiality of sources.
A perusal of South African decisions regarding the confidentiality of sources reveals, at times, contradictory approaches in which the courts appear to be guided by attempts to balance the many competing interests. While not necessarily pivoting media freedom and confidentiality of sources above that accorded to ordinary citizens, the courts have stated that journalists can refuse to testify in cases where their sources will be revealed. Again, it is apparent that this is not meant to protect sources that have provided false information.
The Nugent Commission has so far revealed to the public previously little-known information about the failures of administration and governance at SARS. There were many actors behind these failures, including individuals, the private sector, as well as the media, which was used to create a veneer of legitimacy for the unlawful activity which took place within the entity under the helm of Tom Moyane. Perhaps it is time that the Sunday Times fully disclosed the sources which fed the paper the ‘rogue unit’ narrative. That is what the public interest demands.
Ms Phephelaphi Dube is Director, Centre for Constitutional Rights.