Thursday, October 22, 2009

Protecting the Identity of Whistleblowers

In the fall of 1999, from his home in Hull, Globe and Mail reporter Daniel Leblanc spotted a giant hot air balloon in the shape of a Mountie on a horse, making an appearance at a Gatineau festival.

It struck the inquisitive reporter as strange. The RCMP was in serious financial straits at the time, and was asking government for an increased budget. Why was it spending money on giant balloons?

Leblanc filed an access to information request to find out more. He learned the balloon had been built in England at a cost of about $100,000, but the government had paid $324,000 to rent in for 11 months. A marketing firm based in Ottawa, which had contributed to the ruling Liberal party, owned the balloon. Leblanc had a front page story.

That's as far as the story might have gone, but the article encouraged insiders to begin feeding Leblanc more information about other unusual marketing schemes. It finally led to the revelation of the sponsorship scandal, an affair that arguably played the biggest role in the federal Liberal party's eventual fall from power. Leblanc's best source was a female whistleblower who identified herself only as MaChouette, or "my dear." Her identity remains secret to this day.

But lawyers for advertising company Le Groupe Polygone Editeurs Inc. want Leblanc to reveal his sources, and the Quebec Superior Court has agreed. Yesterday, lawyers for the Globe and Mail appealed that ruling to the Supreme Court, which has reserved its decision.

Leblanc has indicated he would go to jail rather than be forced to reveal his sources.

The case parallels another fight over sources in the Shawinigate affair. Former National Post reporter Andrew McIntosh, who led the coverage, also received confidential information from sources. The RCMP secured a warrant and an assistance order to seize a leaked document from McIntosh so they could perform forensic tests and determine if the whistleblower had broken any law. McIntosh refused to hand the document over.

The case went to the Ontario Superior Court of Justice, where Justice Mary Lou Benotto quashed the warrant and order, and issued a landmark ruling. Among other things, she said: "If the journalist-informant relationship is undermined, society as a whole is affected. It is through confidential sources that matters of great public importance are made known. As corporate and public power increase, the ability of the average ctizen to affect his or her world depends upon the information disseminated by the press. To deprive the media of an important tool in the gathering of news would affect society as a whole. The relationship is one that should be fostered."

But the Ontario Court of Appeal later overturned that ruling. "We do not diminish the press's important role in uncovering and reporting an alleged wrongdoing," the court said. "But in our society, it is the police who are charged with the crucial role of investigating and prosecuting crime." The case also now rests with the Supreme Court.

Protecting confidential sources is one of the most important yet vexing issues for investigative journalists. Often a whistleblower turns to the media as a last resort, the only path to correct a wrong after all other avenues have failed. But if the whistleblower fears that the media will be unable to protect his or her identity, then even the last resort will be lost.

Media lawyers have argued that confidential sources were important in many of the most important pieces of journalism over the last half century. But journalists in this country currently have no legal right to protect the identity of sources.

Journalists will be carefully watching the Supreme Court's judgments when they come, as will future whistleblowers. If the situation governing source protection remains unchanged, one has to wonder how many scandals might go unreported in the future as a result.

Tuesday, October 13, 2009

Fighting for Access to Tommy Douglas' Files

Tommy Douglas has been the subject of numerous books, documentaries, movies and debates that finally crowned him, in a CBC competition, as the Greatest Canadian.

But the federal government is still reluctant to tell Canadians everything they know about the man.

Canadian Press reporter Jim Bronskill, who knows the Access to Information Act better than most any other journalist in Canada, has tried and so far failed to pry the information loose. He filed an access request in 2005, getting a file that showed the RCMP secretly monitored the former NDP leader's speeches and even eavesdropped on private conversations. But much of the file was blacked out.

Now Canadian Press is taking the federal government to court to force disclosure of hundreds of pages of material they have so far withheld.

Sunday, October 11, 2009

Standing Up to Corporate Bullying

The BBC wasn't mincing its words last May when it reported on a shocking incident involving a multinational corporation and one of the poorest countries on earth.

"It is the biggest toxic dumping scandal of the 21st century," the public broadcaster said, "the type of environmental vandalism that international treaties are supposed to prevent. Now Newsnight can reveal the truth about the waste that was illegally tipped on Ivory Coast's biggest city, Abidjan."

The story involved the giant oil and mineral-trading firm Trafigura, which was attempting to treat and dispose of hundreds of tons of toxic sulphur sludge. In the dead of night on August 18, 2006, the waste was off-loaded in Abidjan and dumped all over the city. Residents picked through debris, looking for anything of value. Thousands later got sick.

The BBC interviewed Fidel Kouadio, eight months pregnant when the fumes invaded her home. She gave birth prematurely and her baby died within a day. According to some reports, nearly 100,000 people eventually sought hospital treatment, and more than 30,000 launched a lawsuit against the company, citing breathing problems, diarrhea and other health issues.

Ever since the episode had begun in 2006, Trafigura tried to deflect responsibility for the dumping and argued that the materials weren't particularly dangerous anyway, only that they smelled bad. The company also launched a comprehensive public relations campaign to counteract negative publicity. And they aggressively threatened to sue media outlets who waded into the story.

According to the Guardian newspaper, whenever journalists tried to write critically about the company, they were pressured by Carter-Ruck, London's most aggressive libel lawyers. The BBC was slapped with a libel writ for its reporting, and other journalists in the Netherlands and Norway were put on notice as well.

Last month, the story took another twist when the Guardian and BBC revealed internal company emails showing that Trafigura knew the waste dumped in Abidjan was so toxic it was banned across Europe. The emails revealed an effort to profit from suspect methods of treating the waste. As the story was breaking, Trafigura countered with compensation offers to the thousands of people who had initiated the lawsuit against it.

The damning internal emails had been gathered by a group of agencies including Greenpeace and Amnesty and shared with reporters at different media outlets. The Guardian said the effort was a good example of international co-operation among media outlets. Spokesmen for Greenpeace said they noticed many media outlets shying away from the story in the early going because of fears they would be sued. But the eventual release of the emails gave the story a different complexion.

Even the UN human rights special rapporteur, Okechukwu Ibeanu, criticized the company for potentially stifling independent reporting and public criticism in a report Trafigura ironically tried to prevent being published as well. Trafigura maintains the settlement of the court case vindicates its position, and it continues to deny direct responsibility for the dumping, which was done by a sub-contractor.

What are the lessons for investigative journalists from this episode? For one thing, it demonstrates that even in an age of international awareness of human rights and environmental concerns, there can be disturbing cases of illegal activities that affect so many thousands of people. What is equally disturbing is how little coverage the case has received in North America.

Secondly, the case is another reminder of the courage that journalists need to show in the face of intense pressures. Threats of lawsuits and gag orders can weigh heavily on individual journalists and their organizations. The BBC responded with a fighting defence, arguing that Trafigura's denials lacked candour and credibility, and accusing the company of a cover-up.

Even though Trafigura has agreed to pay about $50 million to settle compensation claims, and an additional $160 million to the Ivory Coast government for the cleanup, the case is not over. Greenpeace now wants to prosecute Trafigura in the British courts for manslaughter and causing grievous bodily harm.

Sunday, October 4, 2009

Checking Under the Sheets -- A New Kind of Undercover Reporting

Investigative journalism aims to hold powerful institutions to account, and it does so with a method that is methodologically sound and free of bias.

But it also has to tackle subjects worthy of public attention. Do hotel reviews qualify?

The creators of Oyster Hotel Reviews seem to think so. They have assembled an impressive team of reporter/photographers to stage undercover visits of hotel rooms and provide unbiased reviews of what they see. The result is easy to dismiss as inconsequential. But you might change your mind if you're about to embark on a trip and need a hotel room.

Searching on the Internet for hotel rooms can be frustrating. Just about any property can be made to look clean and luxurious, and the reality sometimes doesn't present itself until it's too late. Even sites that offer user reviews can be suspect. It is impossible to know whether establishments are somehow pumping up their own venues with planted reviews, or dissing the competition.

The team that created Oyster sensed an opportunity. They put together more than $10 million in financing, hired about 20 reporters, and set up an ambitious project that is labour-intensive and financially risky. They send reporters to hotels around the U.S. and the Caribbean at their own expense, where the employees anonymously check out every aspect of the property and their rooms. Then the reporters file exhaustive reviews, often with hundreds of photos detailing everything from the shower stall to the coffee maker.

The reviews are rigorous. Reporters have to follow a 60-page manual, allowing readers to compare amenities precisely. At the end, in addition to the length review, reporters provide a condensed bottom-line assessment and a 0-5 rating.

The reporters' credentials are listed for all to see, though the site coyly protects their identities by just giving first names and initials for the surname.Most are former journalists at places like the New York Times, the Village Voice, BBC World Service and other large mainstream organizations. One has investigative experience with the New York police department. Some are former financial services reporters.

The site highlights one of the distinctions between professional journalism and user-generated content. While travel sites such as TripAdvisor can be useful if there are large numbers of reviews on single properties, their value becomes less clear when the numbers of comments are sparse. Anyone who regularly wades through comments on online news stories knows the ranting and uninformed discourse that can dominate. Oyster is offering a far-more unbiased and professional approach.

So far, there are no ads on the site. And the expenses are huge. Oyster pays its reporters full-time salaries and sends them on all-expense paid trips. Still, they believe the business model will eventually become clear. Owners hope to keep building the reporting team and expanding the coverage areas. The goal is to become the largest U.S. travel media outlet by the end of this year.

OK, I confess to clicking on the Jobs portion of the site to see if there are any opportunities for journalists. Could this be the dream job, travelling to exotic locations with the onerous responsibility of jumping on the mattress and photographing the shampoo bottles? I couldn't find any current opening for a reporter. But I did notice one for editorial assistant. One of the job benefits? A catered lunch.