Promising Confidentiality to Your Sources

What are the legal consequences if you promise confidentiality to a source? While your use of confidential sources should generally be the exception and not the rule (it’s almost always better to get something on the record and for attribution if you can), there are a number of reasons you might wish to promise a source confidentiality. For instance, some sources may only be willing to share information with you if you promise them confidentiality because they fear retaliation or other adverse consequences. In other situations, you may wish to promise your source confidentiality because in some places such a promise makes it harder for someone to require you to disclose the identity of your source in court.

Yet by promising your source confidentiality, you may incur legal obligations to your source. Keep in mind that promising a source confidentiality may make it difficult for you to change your mind later. For instance, you might decide that the source's identity is newsworthy and wish to report about it. While the law varies from state to state, some general guidance on this issue is possible.

First, consider carefully whether to promise your sources confidentiality. There are several potential benefits and drawbacks of promising confidentiality that you should consider:

Benefits of promising confidentiality:

  • Your source might be willing to give you more information.

  • In some states, promising your source confidentiality before you receive information will strengthen your ability to resist legal demands for your source's identity. See your state under State Law: Legal Protections for Sources and Source Material to determine if that is the case for you.

Drawbacks of promising confidentiality:

  • By promising confidentiality to your source, you may be legally bound to keep the promise. If you later decide you wish to reveal your source's identity, your source may be able to sue you if you do so. To learn if your your promise would create a legal obligation to your source, and to learn the consequences of such an obligation, see the section below on how a legal obligation arises for more information.

  • By promising confidentiality, your readers/viewers/listeners will have less information about your source and will not be able to assess your source's credibility on their own. This can also have an impact on the overall credibility or persuasiveness of your work.

In sum, promising confidentiality can provide benefits to you and your source, but you should only offer it after you have carefully weighed the benefits and drawbacks. If your source demands confidentiality, make sure you intend to maintain confidentiality if you agree. Also, no matter what you decide, it is a good idea to be clear with your source about what he or she should expect with respect to confidentiality. Agree with your source on exactly when and to whom, if anyone, you can reveal your source's identity.

Second, consider whether you will be able to keep the information secret. Once you have obtained information from a confidential source, you will need to keep the source's identity secret. Be careful of revealing any unpublished news you have received if you do not want the information to be public. It might be tempting to talk about a juicy piece of information you have discovered with your relatives, friends, or co-workers. Resist the temptation. There are a number of negative consequences that can occur if you reveal the identity of confidential sources or unpublished news to anyone.

In a number of states, if you reveal your source's identity to anyone, you can lose your ability to protect that information later. This means that even if you could have protected the information from a legal demand, you no longer will be able to do so. Even if you are still able to protect your information from a legal demand for it, the person who knows the information might not be able to do so. You might have a "journalistic privilege" to protect your sources' identities and unpublished information from a legal demand, but your friends and relatives and co-workers might not have such special protection. If a party to a lawsuit discovers that someone else has the information they want, they might ask a judge to require that person to reveal the information.

Beyond legal considerations, as a practical matter, the more people who know the information, the more likely it is to be revealed. People are not always good at keeping secrets, and you may not wish for the information to be revealed. If others do not know the identity of a source or a tidbit of unpublished news, they might not even realize it exists, so they may not ever know to seek it from you.

How a Legal Obligation Arises

In general, by promising confidentiality to a source you might develop a legal obligation to your source in two ways, either by contract or through detrimental reliance. If you do not have a legal obligation to your source, typically he or she will not have any legal recourse against you if you break your promise of confidentiality.

  • By Contract

First, you might have a legal obligation to your source if you have formed a contract with your source. Forming a contract does not require a formal, signed paper document. Contracts also do not require any "magic words." To the contrary, any exchange of promises can potentially represent a binding agreement.

Contracts can only be formed if you promise to do something (or refrain from doing something) in exchange for the other person promising to do something (or not do something). A one-way promise, with nothing expected in return, does not form a contract. Thus, an important question in determining whether you formed a contract when you promised a source confidentiality is: Was there an understanding that you would receive something in return? If you promised your source confidentiality with the understanding that you would receive information in return, that may represent a contract. On the other hand, if you promised the source confidentiality freely, with no promise of anything in return, you probably have not formed a contract.

Whether you and your source made an exchange of promises that constitutes a contract is based on a how a "reasonable person" would have interpreted your behavior. It is not based on how you or your source subjectively perceived the situation.

Even if you exchanged promises in a way that could represent a contract, some courts will hold that contracts formed based on a newsgatherer's promise of confidentiality are not valid. In other words, in some states, if a court deems you a newsgatherer, it will not punish you for revealing the identity of a confidential source to the public. Courts in these states hold that free speech interests, such as those embodied in the First Amendment of the U.S. Constitution, prevent them from punishing you.

  • By Detrimental Reliance

"Detrimental reliance" (also called "promissory estoppel") is a fancy legal term that essentially means relying on a promise in a costly way. It is a type of promise that is legally binding in many states. It applies when you make a promise to someone that you expect that person to act on, and then that person relies on that promise in a way that could hurt that person if you break your word. The key difference between "detrimental reliance" and a contract is that "detrimental reliance" does not require an exchange of promises -- it only requires a one-way promise, and the the person who has been promised something relying on that promise.

An example may help "detrimental reliance" seem more understandable. Imagine that a boss tells his employee that she can have a day off so she can visit her far-away relative, as she had been saying that she wanted to for a long time. The employee, relying on her boss's promise, buys an airplane ticket to see the relative. At this point, the employee may be able to enforce the boss's promise under the doctrine of "detrimental reliance." By promising his employee the day off, the boss knew that his employee would go to visit her relative. The boss knew that his employee would have to spend money to buy a plane ticket. The employee, by buying the plane ticket, relied to her expense on the boss's promise. If the boss were to break his word, it would cause her financial injury.

Here's how "detrimental reliance" can come up for you: Imagine that you promise a source confidentiality. You expect that by making this promise, your source will reveal confidential information to you. As you expect, the source reveals confidential information. You then publish the confidential information you received from your source. Later, you want to reveal your source's identity to the public. The source will say the doctrine of "detrimental reliance" binds you because the source only gave you the information because you promised confidentiality. This is similar to what happened in the U.S. Supreme Court case of Cohen v. Cowles Media Co., 501 U.S. 663(1991), in which the Supreme Court held that it was okay to punish two reporters under the doctrine of "detrimental reliance" for breaking their promises.

What Can Happen to You if You Break Your Word?

Remember, your source can only take legal action against you if you promise your source confidentiality in such a way as to create a legally binding obligation. The two ways this can happen are detailed above.

Your source cannot prevent you from breaking a promise of confidentiality ahead of time. The First Amendment typically prevents any prior restraints against speaking. Your source also cannot take legal action against you if you are legally obligated to reveal your source's identity. For example, you might be legally obligated to reveal the information as the result of a valid court order. However, if you break your word of your own accord, your source can sue you after the fact.

If your source sues you for breaking your word and a court finds you had a legal obligation to keep your word, you may be ordered to pay your source compensatory damages. Generally, this means you must pay money to make up for anything your source has lost because you broke your word. Sometimes, this will not be much, but other times it could be a lot of money. In Cohen v. Cowles Media Co., 501 U.S. 663 (1991), the reporters had to pay $200,000 to their source.

 

Last updated on March 18th, 2008

   
 
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