An Alberta court has ordered a journalist to disclose the identity of a confidential source to a law firm that is suing him for defamation.
Alberta media lawyer Matthew Woodley says the decision, if not overturned on appeal, could have a chilling effect on whether potential sources will come forward with information in the future.
“The risk is that it will have an impact on how sources or potential sources, more importantly, in the future will view the protections that are available to them and their willingness to come forward to provide information in the public interest,” says Woodley, who was not involved in the case.
Thornton’s columns addressed a dispute involving a client in a family law matter who was charged around $70,000 in bills by Stringam Denecky. The client appealed the fees to an assessment officer.
In the meantime, the client’s affidavit in the matter, which was a public document, was given to Thornton, who then used it to write columns about the high cost of legal representation in family law cases.
When Stringam Denecky brought legal action against Thornton, Sun Media refused to produce the identity of the source in the early stages of the proceedings, citing journalistic source privilege.
The source had requested confidentiality at the time they provided the documents, which Thornton granted. In his affidavit, Thornton said confidentiality was essential to his relationship with the source and to his ability to obtain the court document that led to the columns.
Lawyers representing Sun Media Corporation argued that the lawsuit is mainly about Thornton’s opinion in the pieces and not the underlying facts.
Schlosser, however, found that the identity of the source should be disclosed as it could be central to Stringam Denecky’s case against Sun Media, as it could prove or disprove the firm’s claim of malice, recklessness or improper purpose.
Dean Jobb, a journalism professor at the University of King’s College, says the decision shows the limits on what journalists can hold back in terms of their sources. He says one of the places journalists cannot protect sources is when the journalist and media organization are subject to litigation.
“It’s a reminder to journalists that they haven’t been granted any kind of blanket or carte blanche right to protect sources,” says Jobb, who wrote Media Law for Canadian Journalists.
In making his determination, Schlosser analyzed the “Four Wigmore Factors” and found that while Thornton’s communication with the source originated in confidence, and that anonymity was essential to the relationship, the public interest in disclosing the name of the source outweighed that of protecting their identity.
“Counsel should be permitted to explore the identity and the situation of the source, given the centrality of the issue to their case and the circumstances of the promised confidentiality,” he wrote in the decision.
Schlosser noted that the affidavit provided were public and that it is not clear how confidentiality is central to the production of the documents.
“It is not difficult to see why someone might want to keep their name out of the paper, but there is a gap between this request and blanket protection claimed,” he said.
Woodley says the case is unusual, as the source simply provided a publically available document. In a traditional confidential source case, the reason that plaintiffs typically want to get the identity of a source is that the journalist relied upon information the source told them, says Woodley.
“It requires a judge to find that even if the source really did have an axe to grind, that malice or motive translates into what the journalist did, and I think that’s a step that is not necessarily based on logic,” he says.
“So it does make it a less probative or relevant information than it would be in other traditional source cases.”
Edmonton lawyer Sara Hart, who is representing Sun Media, says her client is appealing the decision, but she declined to comment further on the decision.
James Heelan, the lawyer representing the law firm, also declined comment.