In a very unfortunate bit of news, the Canadian Supreme Court on Friday ruled that there is no source protection for journalists in Canada, and a Vice Media reporter, Ben Makuch, is required to hand over his sources from an investigation he did with a Canadian man who claimed to have joined ISIS. Makuch had interviewed Farad Mohamed Shirdon back in 2015, and the Royal Canadian Mounted Police (RCMP) demanded access to all of his information. Vice and Makuch refused. In 2016, a lower court ruled against Vice and on appeal, the media organization lost again. Given those two loses, perhaps the eventual Supreme Court ruling isn’t that surprising, but it is still extremely disappointing and worrisome.
As Vice noted in an editorial posted after the ruling, this is a dark day for press freedom:
Lawyers for VICE Canada argued unsuccessfully through three levels of court that the RCMP is fishing for information and is effectively forcing a journalist to be an agent of the state. With this court decision hanging in the balance for years, Makuch has continued to produce fearless and important journalism on sensitive and often dangerous topics. Today’s decision will no doubt have a chilling effect on both sources, who may be reluctant to talk to reporters, and on journalists themselves, who could be less inclined to report on sensitive issues.
While our lawyers lost, we strongly believe that the journalism—which is already under attack across the globe—needs to be free from state intervention.
To some extent, we’ve dealt with this issue in the US as well, where some believe the 1st Amendment should already protect reporters and media orgs from giving up information on sources, but where the government still has gone to court — such as in the case of James Risen — to try to force journalists to reveal sources.
And while there have been some attempts at creating so-called “shield laws” against these sorts of things, unfortunately, nearly every attempt to do so would require the government to define who counts as a journalist, which would also be a huge 1st Amendment problem. (And, of course, over in Europe there’s an issue where Romania has been trying to use the GDPR to force a reporter to cough up sources).
I know that some people don’t think this is that big of a deal, but it is a huge deal if you want journalists to be free to investigate and report on things like government corruption and abuse. To do that, journalists rely on sources providing them information — and to get sources to provide you information, journalists frequently need to guarantee them anonymity for fairly obvious reasons. But when governments can force away that anonymity, it creates a huge mess. Sources will be much less willing to come forward, as they know that even if a journalist promises protection, they can’t guarantee it against a demand from the government. This will lead to significantly less whistleblowing, especially in important cases.
As Vice says:
It should go without saying: we are all better off when journalism operates freely, without interference from the state. Otherwise, leaders remain unchecked, massive corporations undermine elections, and the stories of the most vulnerable members of society remain untold. This might seem like hyperbole, but a quick glance at the recent headlines in any major publication should serve as proof that these things are happening.
It’s too bad that Canada has decided to flush that kind of openness away.
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