Are there rules about "off the record" in journalism?

Question

In journalism, interviewing someone "off the record" means that the reporter cannot print quotes, even without giving the name of the source.

Are there laws or rules enforcing this? Or is it only based upon the reporter's good morality?

In general, are there laws forcing reporters to keep their sources confidential, kind of the same way as the attorney-client privilege can't be waived by the lawyer?

I know there are constitutional constraints about this in Sweden (because I read Millenium), but detailed info would be cool, specifically for the US jurisdictions.

Answer 1

It might maybe be enforceable under contract law. One party offers something of value (information) under the condition that they get something of value (non-disclosure). Obviously there has to be agreement in advance of disclosure. The matter is even clearer-cut when the information is protected by privacy laws, therefore conditional consent makes the difference between invasion of privacy and not. Cohen v. Cowles Media, 501 U.S. 663 is a case where information was disclosed to reporters, provided that his identity be kept confidential. While the reporters agreed, they nevertheless published plaintiffs name, and he got fired. He sued (fraudulent misrepresentation and breach of contract), and ultimately won (under the theory of promissory estoppel).

Answer 2

To the best of my knowledge, there are no laws requiring a reporter to abide by the rules of "off the record". There is a widely agreed code of professional ethics which says that the reporter should not disclose a confidential source. If a reporter breaks this code, I do not think there is any way for the source to have a valid tort claim against the reporter, or to sue with a reasonable chance of success on any theory.

But that reporter may find it much harder to get insiders to provide confidential information in future. The reporter may lose respect from other journalists. If the reporter's boss strongly values the professional code, the reporter might get fired. Other media outlets might be less willing to hire the reporter in future. But none of these are required by the law. They are just the possible results of people's personal reactions.

The answer by user6726 suggests that a promise not to reveal a source might be enforceable via contract law. It might be, although I am not aware of a case other than the one cited in that answer, where this has been tried, and I am not sure if the consideration would be sufficient to make an enforceable contrast. But I would not want this answer read as contradicting the other one.

In Cohen v. Cowles Media Co., 501 U.S. 663 (1991) (the case cited in the other answer) a person who provided information to a newspaper on a promise of confidentiality sued when his name was published. A jury awarded $200,000 compensatory damages, and $500,000 punitive damages. The Minnesota State Court of Appeals threw out the punitive award, because fraud was not established, Then the Minnesota State Supreme Court ruled that "a contract cause of action is inappropriate for these particular circumstances." That court then considered that a different theory of the case, promissory estoppel, might allow the judgement to stand. However, the state Supreme Court believed that the Federal First Amendment would bar such an award. That issue was taken to the US Supreme Court, which held that such an award was not barred by the First Amendment. It did not, however, reinstate the $200,000 award, nor rule on the promissory estoppel claim, as that is a matter of state law. Instead it sent the matter back to the state court for further proceedings. The US Supreme Court case record does not show what the final outcome was, but the case does not seem to support the contention that a contract theory can apply to such a situation, at least in that state. But it does suggest that a promissory estoppel case might work, at least in Minnesota. I have not searched for the final outcome in state court.

By the way, it seems from the case record that the information provided by the source, a political campaign employee, was misleading, although that does not seem to have been raised as a defense.

Answer 3

There are no laws protecting reporter-source privilege in the United States. Most are professional standards and the punishment for breaking is receiving the reputation of being untrustworthy with information or even being a liability to your publisher, and finding it difficult to move forward in your career. Some publishers would also never print information that was obtained off the record, but could use it to find information that is "on the record."

This would be that your off the record source tells you to go to watch the Warehouse on Pier 27 next Wednesday night and to have a camera ready. You don't have to print that you were told to do this when you run you story with pictures about the mayor and the Godfather shaking hands while looking over bricks of cocaine and a suitcase full of stacks of cash. Sure, it would be nice to know that the mayor's aide might have suddenly grown a conscious but you do have his safety to look out for. The head of a mob family who has nothing left to lose is quite dangerous to people who piss him off.

Answer 4

There is no legal basis for "off the record" to apply, unless you consider it a verbal contract, for which you would have to present compelling evidence on the balance of probabilities at the very least.

This is a bit like the ancient idea of taking refuge in a church. Sadly, modern governments - even in so-called liberal democracies and liberal republics tend to increasingly pay little regard to such notions, and tend to adhere to "might is right" and "total war" approaches to things.

Look at Assange and Snowden, you have everything from "all of a sudden" sexual charges to contrive a pretext for extradition of both citizens and foreigners to be subject of a trial process where there will be little surprise of what the outcome will be. If anything the embassy system has shown to be the modern equivalent of the church, and to provide more guarantees of security than the assurances of a journalist.

Journalists are, after all, citizens, and employees. "Freedom of the press", has come under extreme pressure and compromise in recent years, for example when it came to accurate or critical reporting of concerns about unprecedented and potentially alarming aspects of the pandemic response by governments; or of security police interference in supposed democratic elections, suppressing particular news stories, pretending they were false, when they were eventually revealed to be true. In that context, what "off-the-record" sanctuary can a journalist offer? All it comes down to is the reputation of journalists or particular news outlets, many of which are compromised already.

It is for this reason that things like Freenet, TOR, and I2P were created, and why things like XMR and other dark web technologies exist to offer more assurance of "off the record" than a named individual could expect from a journalist. It applies to the agents run by intelligence services... all the assurances in the world won't guarantee anything, and suing later for breach of contract is a bit like trying to transmute faeces back into food.