Media Accountability and Protection of Sources

(South China Morning Post)  3 guilty of ICAC plot, Egan of leak attempts.  By Polly Hui.  June 13, 2006.

A veteran lawyer, a former listed company chairman and his lover were convicted yesterday of conspiring to pervert the course of justice in a high-profile case that followed raids by the Independent Commission Against Corruption on several newspaper offices.

Solicitor Andrew Lam Ping-cheung, Semtech International Holdings' former chairman Derek Wong Chong-kwong and Wong's lover, Mandy Chui Man-si, were found guilty of conspiring to pressure the ICAC into releasing Wong's secretary, Becky Wong Pui-see, who was in the witness protection programme. 

District Court Chief Judge Barnabas Fung Wah acquitted prominent barrister Kevin Egan of that charge, but convicted him of attempting to disclose Becky Wong's identity to a South China Morning Post reporter. ...

The prosecution alleged that Egan, Lam, Derek Wong, 38, and Chui, 26, conspired to use the court and the media to press the anti-graft body to release Becky Wong, who they believed would give damaging evidence against her boss in a case in which he is accused of share-price manipulation.  It was alleged that the four launched a habeas corpus application on the secretary's behalf, knowing she was not being unlawfully detained by the ICAC.  Chui was accused of falsely claiming that Becky Wong had spoken to her twice on the phone in a "faint and trembling voice" and that the secretary had no close family members in Hong Kong.

Egan was convicted of attempting twice on July 15, 2004 to disclose Becky Wong's identity to Magdalen Chow Yin-ling, then chief court reporter of the South China Morning Post. Ms Chow testified under immunity as a witness for the prosecution. ...

The courtroom was packed with lawyers, families of the accused and journalists for the reading of the verdicts in the case, which began with a raid on seven newspapers including the Post - in July 2004 - and involved three months of hearings. At least 15 people were seen standing at the entrance of the courtroom at one point.  The judge skipped the usual breaks in proceedings yesterday, but still said he would need two days to read his ruling, which runs to more than 150 pages. He is expected to explain his reasons for the convictions today. 

From the above summarized story line, Apple Daily amplified on one aspect: a journalist's obligation to protect the source, as exemplified by Magdalen Chow's behavior.

Magdalen Chow

(Apple Daily)  June 13, 2006.

[in translation]

The protection of the source of information is regarded as a golden rule in journalism.  Overseas journalists have gone to jail rather than reveal their sources.  In the case against Semtech International Holdings' Derek Wong and others for allegedly attempting to pervert the course of justice, a former South China Morning Post reporter testified under immunity that barrister Kevin Egan was her source.  The South China Morning Post emphasized yesterday that the incident was not a confidential interview, and therefore the act did not contravene professional standards.  But scholars and industry colleagues believe that journalists have the obligation to protect their sources.

A South China Morning Post spokesperson said yesterday that their newspaper always believes in the importance of protecting their sources, especially with respect to the origins of secrets, but this case was an exception.  The relevant information was delivered at a public space and published in their newspaper as well as others.  This was therefore not a confidential interview.  The newspaper recognized the seriousness of the case and, after obtaining legal advice as well as the consent of the female reporter, decided to cooperate with the Independent Commission Against Corruption and fulfill their social duties.  They believe that they have not violated professional ethics as a result.

The vice-chairman of the Hong Kong Journalists Association, Tam Chi-keung, said that according to the professional rules established by the Journalists Association, journalists must protect the source of confidential information.  The reason why journalists can obtain information is because the citizens trust them.  "I teach the students that they should rather go to jail than testity.  They should not join the profession unless they are ready to be held in contempt of court and serve three months of prison time."

Baptist University Department of Journalism assistant professor To Yiu-ming believed that after this incident, all the sources for the relevant journalist and her organization "will cease, as no one will provide information to her."  But he pointed out that Hong Kong does not have any law to allow journalists to protect their sources.  Thus, if journalists insists on not disclosing the information, they will be charged with contempt of court and the reporter can only resort to using Article 27 of the Basic Law concerning the freedom of press.

Barrister Huan Cheng who had worked at the Far East Economic Review and Asia Weekly said that unless the court forces the journalist to disclose the information, the journalist has the obligation to protect the source.  "What right does the company have to tell the reporter to speak up?  The loyalty of the reporter should be for the freedom of press, and not to the company."  Huan Cheng said: "Many lawyers are saying that they won't pick up the telephone when reporters call in the future, while others say that they must be careful."

There have been many overseas cases in which reporters have declined to disclose their sources and getting penalized as a result.  In April this year, Taiwan's United Daily reporter Kao Nien-yi declined on three occasions to cooperate due to "the lack of appropriate cause" and was fined NT$30,000.  The Nationalist Party is present studying a legislative proposal to protect the right of journalist not to testify.

In certain states in the United States, Canada and New Zealand, there are written laws that protect the sources of informatoin.  But certain courts may ask the reporters to disclose the information on the basis of significant public interests.  The European Union Human Rights Court points out that journalists may be asked to disclose the source of their information when there is overriding public interest.

What is wrong with these arguments to an outsider?  The defendants Derek Wong, Mandy Chui, Andrew Lam and Kevin Egan were accused of conspiring to pervert the court of justice, and their principal tool was misinforming the media.  What does the Journalists Association, the profession journalists and the academic scholars think?  The consensus seemed to be that the relevant journalist must protect these people and thereby collude in the perversion of justice.  Why?  Because other future sources may dry up otherwise.

I should hope this is not how ethics is about.  If anything, this is what ethicis is not about.  In this specific case, by turning these people in, the newspaper is giving a clear signal that it has no intention of serving as anyone's tool in promulgating an agenda that was against the public interest.  It would be removing a blight to journalism as a whole if sources realize that they will not be protected for abusing media access.

The following opionion essay appeared yesterday, and this is about the so-called courageous overseas media organizations and their protection of confidential sources.

(Miami Herald) When Accountability Is Compromised.  By Edward Wasserman.  June 12, 2006.

The disgraceful affair of Wen Ho Lee, the onetime Los Alamos scientist defamed but never tried for supposedly stealing nuclear secrets for China, is over.

The U.S. government and five news organizations will pay Lee $1.64 million for sliming him by publishing private information from his personnel files to support espionage allegations that nobody could ever prove and that apparently were unfounded. Lee spent nine months in solitary confinement and had his career destroyed, thanks largely to leaks from prosecutors that were breathlessly published in 1999 by some of the nation's best news organizations.

Reporters wouldn't talk

Eventually, Lee pleaded guilty to a single charge of wrongly downloading classified documents; the 58 other charges were dropped, and the federal judge in the case apologized to Lee in open court for his treatment. He sued the government over the leaks, and tried to find out from reporters who it was that lavished them with the damaging allegations. They wouldn't say. Now, thanks to the payments, they won't have to.

What a mess. Of all the current cases involving confidential informants, the Lee affair raises, in my view, the most troubling issues. The media coverage his case received was enough to doom his career and ruin his reputation, long before the merits of the case could be fairly weighed.

Lee couldn't sue for his good name, but he could sue over the violation of his privacy rights constituted by the leaks against him, apparently fueled by anti-Chinese animus and promoted by political operatives who believed that the Clinton administration was impeding the case against him. (For excellent background on the affair, see Eric Boehlert's 2000 Salon article at http://archive. salon.com/news/feature/2000/ 09/21/nyt/print.html.)

A familiar line

Now, media organizations -- The New York Times, Los Angeles Times, Washington Post, Associated Press and ABC News -- contributed $750,000 to the settlement. They say they settled to avert further litigation that, courts have made clear, would likely have forced them to identify the people who dished them dirt against Lee.

They acted to prevent further erosion of their ability to protect confidential sources.

It's a familiar line, and the commentary about the affair has focused exclusively on whether the media will now be vulnerable to payoff demands from other plaintiffs who subpoena reporters to get at their sources. But circling the wagons around the principle of source protection gives the media an easy out. It enables them to avoid considering whether there might be anybody else in this drama who deserves protecting.

Not just Lee. How about the rest of us, whose lives and livelihoods are in the hands of powerful, so-called public servants who may be headstrong, vindictive, mendacious and wicked, and who are supposed to be held in check -- not shielded -- by a vigilant and dedicated press?

Source confidentiality

When the media decide that predatory bureaucrats with a good-enough story to tell are entitled to constitutionally sanctioned protection, regardless of their truthfulness and recklessness, where does that leave us, the citizenry? And what happens to that core principle of accountability -- of the government and the media?

The practice of source confidentiality needs an overhaul. The continuing Bob Novak affair, in which reporters have risked prison to safeguard the right of senior government officials to endanger a blameless CIA agent whose husband embarrassed the administration, should have been enough. Instead, the media's toothless response has been to treat this as a PR problem, to start disclosing the ''reasons'' for withholding an informant's name, which generally boil down to, ``The source insists.''

The real question is, why are you telling these guys' stories in the first place?

Confidentiality promises are powerful and complex things. Sometimes brave and desperate people take great risks to expose important wrongdoing, and the reporters who shield them accept legal exposure. Good for them.

The powerful's use of the press

But are we so morally obtuse that we can't distinguish that from the much more common scenario where the powerful use the press first as pack animals and then as guard dogs?

The Wen Ho Lee affair is over, but far from settled. The intrigues that destroyed him may never be exposed, because the media organizations that are best qualified to uncover those intrigues were parties to them, hopelessly compromised. Nurturing a source may be a professional necessity; protecting the source may sometimes be a public boon. But there are other duties, such as exposing the truth, that may be even more imperative and that don't vanish in the glare of a self-serving agreement to keep an undeserving source secret.

For details on the Wen-ho Lee case, see Comment 200606#012.