Sources are sacred. But so are facts

I was recently asked about my opinion on the confidentiality of sources by The Times after the matter cropped up in the course of libel proceedings filed by energy minister Konrad Mizzi and his wife Sai Mizzi, and his communications aide Lindsey Gambin against Daphne Caruana Galizia, the Malta Independent columnist.

Mizzi’s lawyer Paul Lia has asked the court to determine whether Caruana Galizia’s blog, which is unregistered as a publication as per Maltese press laws (there is no registration of digital news outlets) can be considered a ‘newspaper’, and as such determine whether Caruana Galizia can invoke the protection of the Press Act not to reveal her sources.

The claimed defamation concerns allegations that Mizzi, a married man, was seen in an intimate embrace with Gambin in a St Julian’s bar.

Much has already said about the dangers of a court decision that would suddenly decree that under Maltese law, press registration with the Department of Information confers a designation of “journalist” and with it the protection from disclosing sources under the Press Act.

That in itself would not only expose all Caruana Galizia’s confidential sources; it means the mere act of communicating, leaking news, or confiding in anyone who is not a registered journalist cannot enjoy the protection of confidentiality in a court of law.

To me Lia’s is hardly a reasonable legal attack in the case of an allegation that, in the first place, cannot be lightly bandied about without an honest attempt at soliciting comment and with some form of tangible evidence.

Firstly, irrespectively of DOI press registration, as long as the long arm of the law can reach you – whether you are a journalist or blogger, letter-writer, or Facebook guerrilla – registration matters little in cases of defamation. And indeed it has happened that even a careless Facebook comment lands its author in a court of law.

Secondly, I would argue that the trade is pretty much open to anyone. Yes, essentially a ‘working journalist’ is dedicating a good portion of their time and possibly generating income from the trade, apart from staking their credibility on what they do.

But this common understanding of a journalist cannot leave out freelancers or unpaid citizen journalists. If anything the issue at stake is whether those who are journalists are doing the job properly, fairly, ethically, or to an editorial standard that respects a wide array of readers. By that measure, a journalist can take many forms: from citizen journalists in Raqqa to bedroom bloggers bypassing the mainstream media and reporting the news as they see it.

Thirdly, the courts should not be giving credence to any legal attempt that tries to differentiate between – this is what I believe Lia was angling at – ‘quality’ journalism and gossip blog. In both dimensions readers will find examples of good and engaging writing coupled with correctly stated facts (I’d add that journalists, whoever they are, shouldn’t punch down, if possible; neither make their personal prejudices the news).

In the free marketplace of ideas, it’s the readers that count and their choice to read whatever they want. Ultimately, the freedom of journalists to impart information will always be restricted by Article 19’s famous limitation: the rights and reputation of others.

So non-disclosure is a sacrosanct right, and only a legitimate and very serious interest should be invoked to override the public interest not to reveal sources.

But In defamation suits such as the Mizzi libel in which the plaintiffs are demanding that Daphne Caruana Galizia reveal her sources, there is neither wisdom nor the necessity in asking the courts to determine the ‘journalistic-ness’ of the author of an allegation.

What the court should be determining is whether a person’s reputation has been vilified by allegations that cannot be proven, that is: consider all evidence which is available to them under national law as to whether an allegation is defamatory or true.

A journalist cannot just tell an MP that his sources have seen taking drugs. The sources would have to be credible, for in this case the criminal allegation would have to be substantiated by an eyewitness account. And in the case of the misdemeanour of marital infidelity? Some form of convincing evidence should support the allegation. After all, we have a concerted denial and libel suit challenging the assertion.

When sources tip off a journalist, the journalist usually sets out to gain a proper confirmation of the allegation. To me hearsay and rumour and unsubstantiated allegations fired off a laptop are simply bad journalism.