The Journalist's Guide to Media Law - Chapter 9 - Keeping Secrets - Working with Confidentiality

The laws of confidentiality and disobedience contempt strike at the heart of a relation between a journalist and their source.

Those such as Chris Masters and Phil Dickie who exposed corruption in Queensland aruged that they could not have reported their stories adequately without the use of confidential sourced. However, some critics suggest that journalists too readily accept information on a confidential basis.

The Media, Entertainment and Arts Alliance (MEAA) reviewed what terms such as 'on the record' and 'off the record' or 'background only' meant when sourcing information.

The following are the basic definitions of the three main terms:

• on the record - Information that can be attributed to the source by name. 
• on background - Information able to be used but not attributed to the source by name. 
• off the record - Not to be used. 

Tips for Journalists: 

• Beware of relationships of confidence - Taking information off the record is not like wearing some badge of honour, infact it's evidence that you did not try hard enough.
• Negotiate confidentiality with your sources. Make sure your sources know the difference between 'off the record' and 'background.' Base your negotiations on such definitions as defined above by the MEAA.
• Inform your editor or news director if your about to publish a story using a confidential source as they are responsible for the publication and deserve to have the opportunity to weigh up all the risks. 
• Inform your lawyers - Lawyers will help you avoid a situation where you could be standing in a witness box refusing to answers questions regarding your sources.
• Don't keep notes on off-the-record conversations and be careful not to leave a trail of telephone and email records to your source. 
• Beware of information 'falling off the back of a truck.' If you don't know where the information has come from, you have to question it's credibility and motives and check with your lawyers and editors for breaches of confidence.
• Use FOI laws to effect - Despite the obvious shortcoming the patient use of FOI can save a great deal of angst over confidentiality issues. You are protected from revealing a source if you have the relevant documents issued under a FOI request.
• Be patient - Information that is confidential one day may be on-record the next after someone else reveals it or it is mentioned in court or parliament. Sometimes it's wiser to wait for someone to reveal it in court or parliament. 

Where is the Australian journalist's ethical obligation to sources stated? In the MEAA's 'Code of Ethics.' It sates: Aim to attribute information to its source. Where a source seeks anonymity, do not agree without first considering the source's motives and any alternative attributable source. Where confidences are accepted, respect them in all circumstances.