Keeping it confidential to properly protect sources

Mediawatch - Protecting people who offer the media important information is a fundamental obligation.

Producer Chris Cooke quit TVNZ after it failed to keep a promise to a sexual assault victim, whose off the record disclosures ended up being aired in court in defence of her abusers. Cooke and the victim, Erin Leighton, are now pushing for a 'shield law' to ensure our media can guarantee confidentiality. 

Last month, convicted fraudster Paul Bennett and a woman, whose name is suppressed, were sentenced to a term of imprisonment for offending against Erin Leighton in 2008, a crime the judge described as “completely premeditated.”

Suppression orders prevented the media from reporting details of that case until the pair’s recent conviction and sentencing. But Leighton, a teenager at the time she was abused by the pair, waived her own right to name suppression to pursue justice.  

Bennett was previously the subject of plenty of news stories, when he was tried for fraud after skipping to Australia in a stolen yacht. 

Leighton spoke to TVNZ’s Sunday about her frustration that the couple were known to be in Australia, but had not faced justice here for the offences against her. 

She gave TVNZ an interview on the understanding her account of the offending would remain confidential - but footage ended up being played in the Auckland District Court as part of Bennett’s defence. 

Lawyers for both defendants highlighted differences between Leighton’s accounts in a 2008 police interview video and the TVNZ footage from 2015.

Last week the New Zealand Herald said TVNZ had gone to court to oppose the release but eventually complied with a court order under the Criminal Disclosure Act. 

“TVNZ (was) compelled by the courts to provide specific material for the purposes of a fair trial. There were no further realistic legal avenues left for us to pursue, regardless of how individuals felt at the time,” TVNZ told the Herald.But former TVNZ producer Chris Cooke told the Herald that TVNZ breached a promise to Leighton to keep the interview confidential. 

Cooke said he had urged TVNZ to challenge the decision and honour a commitment it had made to Erin Leighton that it would appeal to a higher court to prevent the release of the interview footage. 

“It was clear there were grounds to appeal the District Court decision. I was disgusted. After I sat through that hearing, I resigned,” Cooke told the Herald.

Last week the Herald’s Katie Harris and David Fisher reported an internal email showed TVNZ had decided not to appeal to higher courts to keep the material private - contrary to the commitment it hade made to Erin Leighton.

“Given the verdicts received at District Court and Court of Appeal we did not appeal further,” a TVNZ spokeswoman told the Herald subsequently, adding that TVNZ initially opposed the release of the footage at “substantial cost”.

“We have since updated our legal training with journalists to cover what assurances they can provide sources and what guarantees they cannot give,” TVNZ told the Herald. 

A one-off? Or a worrying precedent? 

University of Canterbury professor Ursula Cheer told Mediawatch she believed it was the first time the Criminal Disclosure Act had been used to obtain off the record information.

She said the law governing discovery of evidence before trial did not have the same presumption of a journalist’s relationship with a source as the Evidence Act and other legislation. 

Cooke now believes a source can never be completely confident that if they speak to the media, what they say will not end up as evidence in court, rather than remaining in the media’s private vaults.  

Cooke and Leighton are now calling for a ‘shield law’ to ensure news media can guarantee off the record interviews and information from sources will remain confidential.   

They have the support of Jennifer Nelson, an attorney for the US-based Reporters Committee for Freedom of the Press.

“There is no federal shield law in the United States that applies nationwide. Every state has its own law or recognised privilege that offers journalists at least some protection from subpoenas that seek confidential source information,” she told Mediawatch. 

“But there's a recognition within the shield laws that there is a public interest in encouraging the disclosure of newsworthy information - and where a journalist can be compelled to provide information or testify against an individual that served as a source, there's a chilling effect that makes someone less likely to talk to a journalist in the future.

“Having shield laws in place provides sources with a level of confidence that not only will the journalist keep their promise to them, but that there is a process by which they can object to having to turn over this type of information."

The US legal system and media conventions have different underpinnings in the US constitution and its first amendment rights. Evidence can be sealed, then unsealed if applications are approved by judges. 

The conventions governing disclosure of evidence for court cases also differ for civil and criminal cases in the US. 

But Nelson, formerly a journalist at The Boston Globe, said it was a high bar to overcome the media’s protections and privileges.  

“They have to show that they couldn't get the information from anyone else, that it is material to the case . . . when a defendant's right to a fair trial is at issue  . . . and those cases should be the outliers rather than the norm,” she said. 

Keeping notes

If Leighton and Cooke’s experience shows the law can be used to override media assurances of confidentiality, would the media be wise to make sure sensitive information is not discoverable? Maybe interviews and notes should be deleted - or even not recorded in the first place - once a source has been established as bone fide?  

After the Herald recently revealed how Leighton’s off the record interview with TVNZ ended up aired in court as part of her abusers’ defence, the reporter who conducted the interview - Ian Sinclair  - wrote to the Herald to say “reporters must be able to save material they can’t use at first in case they do need it later. “

“Judges can’t have a hierarchical approach that says lawyers and priests . . . should be allowed to withhold confidential discussions with clients and worshippers, while journalists protecting democracy can’t,” Sinclair wrote. 

Nelson agrees. 

“(Journalists) need those notes and information for future reporting - or if a lawsuit is filed against them for another reason. Having evidence that a reporter has done their due diligence and that they were not negligent in their reporting is key in defending a defamation claim,” she told Mediawatch.  

The source should also have the option of allowing off the record information to go on the record in the future. 

The lawyers for Bennett and the other defendant accused of offences against Leighton highlighted discrepancies between Leighton’s police interview back in 2008 and what she told TVNZ years later. 

If such evidence might be required for a fair trial, is there a wider public interest in overriding the media’s right to withhold confidential information from a source?

“You can't have that public interest being served - and also serve the public interest of journalists being able to do the job. I believe the higher public interest is in maintaining trust in the media,” Cooke told Mediawatch. 

“Journalism relies on people coming forward with information. And if there can't be certainty that journalists can keep off the record promises, then the public's not going to come forward and important stories can't or won't be told. 

“We can't be seen to be used as an arm of the state by providing information to law enforcement or the courts. The public's reaction to that happening is mistrust, which is devastating to what we do. 

“It's a direct attack on our role as journalists, and that basic right we have under our Bill of Rights of freedom of expression.

“Because of the precedent, I believe a case needs to be mounted in the Supreme Court to challenge and overturn this, because it will have a chilling effect . . . that will impact on people disclosing information to journalists.

“I believe a shield law should confer absolute protection . . . to retain off the record information without fear of seizure."

“"It seems so-called fair trial rights trump our rights as journalists to keep confidences and the bar is just too low," Chris Cooke told Mediawatch.  

“That's why I believe it needs to be taken to the Supreme Court. TVNZ needs to  - or If they don't, somebody else should. It's maybe something I could even look at with the help of a lawyer.” 

Cooke and Leighton recently discussed this with Melissa Lee, the National Party's long-serving broadcasting spokesperson and possibly the next media minister for the incoming government. 

“The meeting was a start in exploring the desire for the possibility of a shield law. She's also a former journalist and she understands the importance of journalists being able to keep commitments and maintaining trust in the media. She gave us a lot of time and we agreed to talk again,” Cooke told Mediawatch. 

“I'm hoping that this will ignite a discussion and the Media Freedom Committee will emerge and there will be support and other journalists will talk about it. But primarily, law is changed by governments. Key media organisations, including TVNZ, should step forward and support journalism."

Cooke said TVNZ had not yet acknowledged that or apologised to Leighton.

“What happened to Erin wasn't acceptable. And that's why I resigned because a promise was made to her. That's at the forefront of this issue - keeping those promises and being able to under the law,” he said.