Secret, secret, I got a secret

Reader-submitted question: Can you explain journalistic privilege?

Sure. This is going to be very short. There is no such thing as journalistic privilege.

That was easier than you thought, wasn't it?

Now, of course I'm going to explain more. This was a serious question, and I'm going to give it the respect it deserves.

The first thing I'm going to tell you is that if you really want to know about privilege, you should talk to a lawyer, not to me. The side benefit there would be that the lawyer wouldn't be able to tell anyone that you asked the question. (HAHAHAHA.)

Privilege means that when you give information to a person who is covered by the privilege, that person will keep your secret within certain limits. For example, when you talk to your lawyer, he or she will not tell other people what you said. Or if you're a different type of person, your lawyer might visit your house, root around in the ceiling and discover videotapes of you and your spouse drugging and raping teenagers. When your lawyer is eventually charged with obstruction of justice for hanging onto the tapes, he'll be acquitted and disciplinary charges will be withdrawn.

(LEGAL DISCLAIMER FOR THE FORCES OF EVIL: I IN NO WAY RECOMMEND RAPING PEOPLE OR TELLING ANYONE THAT YOU HAVE VIDEOTAPED YOURSELF RAPING PEOPLE. I DO NOT RECOMMEND HIDING EVIDENCE OF ANY KIND. I’M ALSO PRETTY SURE THAT THE RULES ARE DIFFERENT NOW.)

 

Journalists have claimed that they have a similar privilege. They usually mean that they'll tell everyone what you said (and broadcast those tapes they found in your ceiling), but they won't tell anyone who you are. The reporter's privilege is usually only mentioned when it comes to revealing the name of a confidential source, like Deep Throat.

Reporters claim this, but it isn't true. They don't really have a special privilege like lawyers do. What they call "reporter's privilege" has the same result for the person with the secret, but not for the reporter. It refers to the reporter's conscious decision to defy a court order that would otherwise force him or her to reveal information. Again, this is usually the name of a confidential source, but it could also be things like the reporter's notes and original research.

Journalistic privilege hits the Canadian news about once a year. Journalists' favourite stories always involve themselves, but they also care deeply about establishing it as an honest-to-goodness type of privilege, so they always cover court cases that involve other reporters. I think it's unlikely that they'll ever be successful, but it's interesting to watch anyway. They usually don't actually end up in jail: their employers are typically fined for contempt of court.

There’s one other important consideration. As a lawyer friend of mine pointed out today: Privilege attaches not to the lawyer, but to the client. That's why we can never tell anyone what a client told us, even when we stop working for them or they die - because only the client can waive the privilege. The privilege is totally for their benefit, not ours.

When journalists try to argue that they have a reporter’s privilege, they’re doing it for their own benefit, not for yours. They believe that their industry depends on the ability of the press to keep certain information from ever becoming public, even when ordered by a judge. They feel that they won’t get as many scoops if sources are worried about being “outed”. This is definitely an argument I can accept up to a certain point, but it is not even close to the same thing as solicitor-client privilege. Your lawyer doesn’t keep your secrets so he’ll get more business.

Thanks for your question.