Confidentiality Agreement form on a table. Non-disclosure contract.

A promise of confidentiality is an arrangement struck between The Southern Maryland Chronicle and the source — not between the reporter and the source. The Southern Maryland Chronicle, as an institution, is promising anonymity, and it is putting the entire company behind that promise. The Supreme Court ruled in 1991 that a reporter’s promise of confidentiality can be construed as a contract between the source and the newspaper company. Reporters and media organizations that breach such confidentiality agreements can be held liable.

Only the newspaper’s chief executive, or his express designee, is empowered to enter into a contract on the newspaper’s behalf. The Editor, in this case, is that express designee.

That doesn’t mean a reporter has to track down the Editor to approve a grant of confidentiality before the interview can continue. A reporter is expected to use prudent judgment to negotiate the most advantageous terms to which the source will agree. A reporter is expected to make his team editor aware of those negotiations well before the Editor is involved. And in the end, if the Editor doesn’t like the deal the reporter and the team editor made, then we won’t use the information.

That’s the key: This is a use agreement. If we choose to use information from the source, that use occurs only under the terms of our agreement with the source. If we don’t like the terms, we don’t use the information in print. If we don’t quote the unnamed source, the source — and the deal — don’t exist.

Limits to a grant of confidentiality should be part of the negotiation of the agreement, which can continue right up until the time of publication. Not all of these issues need to be settled before the interview begins.

  • If you wish to use an anonymous source in a story, your editor must know who the source is. Other editors may also be told the name of the source, although you can discuss with your supervisor whether you can limit that number, to prevent accidental disclosure of the source.
  • Confidentiality may be withdrawn, at the Editor’s discretion, if a source is found to have willfully misled the newspaper. In such a case, the source’s prevarication amounts to a breach of the contract for confidentiality. The reporter must make this particular issue clear to the source. That careful disclosure has a use beyond merely making the source aware so that there will be no surprises later. If the source starts backing away from what he’s told you at this point, you have reason to question the information he’s trying to get you to print.
  • The Editor may wish to otherwise limit the guarantee or place conditions on it. For example, the agreement might allow the anonymity to be voided if we become the subject of a lawsuit springing from the information the anonymous source has provided.

Characterization of the source in print should be as specific as possible without violating the agreement of confidentiality. You should discuss with the source how he will be identified in print. Explain to the source that we need to be as specific as possible to provide at least some basis for the reader to judge the source’s credibility.

A reporter should always make clear to the source that if we can get the information elsewhere, we have the right to use it in a story without the source’s consent.