The Real Deal with Anonymous Media Interview Sources

There is an understanding in American journalism that reporters can keep sources anonymous without legal consequences, providing a level of protection to news organizations, reporters, and sources. In fact, it is more than an understanding; it is law – a shield law – in 49 states and the District of Columbia. Only Wyoming has not enacted a shield law.

Why is this important to corporate communications today? The definition of a journalist, and the scope of who is protected under a shield law, is currently being challenged and may change. Before we go into the legal side of things, let’s look at two situations that repeatedly happen:

You are speaking at an industry conference and a reporter approaches you to ask about a rumor related to your company. “I will keep you anonymous – no one will know you gave me this information.” Will your identity really be kept under wraps? What will happen if your identity is made public?

Or

Your company finds itself in the headlines. An anonymous source, identified only as “someone familiar with the matter…,” leaked confidential information or made inaccurate statements about your company. As a result, your company’s stock price is dropping, leaving senior management, corporate communications, and investor relations playing defense. Do you have any legal ability to learn the identity of the source and sue this person for damages?

Regardless of whether your business is in the right or wrong, the impact of anonymous sources can be very real. A falling market cap, reputational damage, and the financial costs resulting from negative media coverage and a court battle could sink your organization. Furthermore, as shield laws are challenged, it is possible that those who divulge information could face conviction.

Redefining the Notion of Journalist

The New York Times recently examined the possible implications of Murray Energy Corporation vs Reorg Research Inc. In summary, Reorg published information leaked from anonymous sources whom Murray believed had signed confidentiality agreements. Murray is demanding to know the identity of Reorg’s sources due to the breach of confidentiality. Reorg refuses to identify their sources, claiming they and their sources are protected under a shield law.

The resolution of this case is of some significance. Given the proliferation of websites and organizations disseminating information and news – which includes formally trained journalists and theoretically any person who has a blog and has had no formal journalism background – this case may change the notion of who is covered under shield laws and who is exempt.

South Carolina Shield Law Case: Are Bloggers Journalists?

The question of whether bloggers are journalists is also working its way through the courts. Will Folks, a blogger from South Carolina, published an article claiming that State Rep. Kenny Bingham was going to be indicted for an ethics complaint. Folks had received his information from a confidential source, and the information was subsequently proven to be inaccurate. Although Mr. Folks identified the anonymous source, Bingham sued to compel Folks to reveal other confidential sources in other articles. Folks refused, citing South Carolina’s Shield Law protection. Bingham claimed the information was necessary for proper evaluation in a criminal case, an exception that is allowed under the South Carolina Shield Law. From our point of view, the central issues in the case are whether Folk, as an individual blogger, should be classified as protected as a member of the news media, and how responsibility for libelous information should be handled.

Requiring journalists or other writers to name their confidential sources could place well-meaning whistle blowers at risk of legal ramifications. It may also offer corporations the opportunity to sue for damages if leaked information is proven false. Although demanding restitution for damages related to false allegations could seem beneficial, setting such a precedent could be harmful to both businesses and the media in the long run.

Considerations for your Business

Anonymous sources have been a foundation of journalism, including business news, for decades. Today, however, there is enough contention and confusion within the realm of anonymous sourcing to warrant caution for businesses and for any person who chooses to speak anonymously. There is simply too much risk to both the individual and the business, and at Franchetti Communications, we assert there is no such thing as being “off the record.” While there is a need to protect whistle blowers in times of gross negligence, there is also a need for businesses to protect themselves from disgruntled employees or competitors who might choose to reveal sensitive information about their companies.

Rules for Media Interviews

Only time will tell what recourse – if any – a corporation will have when they are displeased with news coverage. What good is a confidentiality agreement if you cannot enforce it to prevent employees and former employees from divulging sensitive information to the press? Will companies sue for damages due to the resulting decrease in market cap, for example, if a story can be proven to be false or that the source leaked confidential information? Could you be sued for providing anonymous tips to the media?

For organizations and individuals participating in discussions with the media, it is important to be prepared and to know your rights. Given the ambiguity of how a journalist is defined today, the legal challenges working their way through the courts, and the possible negative consequences, we discourage the practice of providing anonymous information and provide specific rules to follow in media interviews.

Originally published on LinkedIn.

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Franchetti Communications delivers accelerated results by designing power-packed media interview and presentation training sessions around your unique goals, in person and via teleconference. Franchetti Communications works with corporations and business leaders to develop communication strategy, messaging, and PR strategy. Follow Franchetti Communications on LinkedIn, and be sure to download our special report: 6 Ways to Guarantee Your Message Cuts Through the Clutter.