Putting source documents online, cont.
The facts of the case are quite simple: in November 2001 (yes, the wheels of justice move very slowly indeed), Reuters, the FT, the Guardian, and the Times all received, anonymously, a fake presentation saying that Interbrew was ready to launch an imminent bid for rival SAB, at between 500p and 650p per share. Most of the presentation was real (and confidential), but the share price had been boosted, and a timetable inserted.
When the media reported the contents of the presentation, SAB’s share price naturally rose sharply on very high volume; one can only suppose that the leaker of the fake document made substantial profits as a result. Interbrew, seeing its SAB bid plans sabotaged, naturally wanted to identify the leaker, and believed that doing so would be made easier if it had a copy of the fake presentation.
At that point, unhappily, the eight-year court case began. Interbrew sued the media outlets to force them to give up a copy of the presentation; they refused, saying that complying with such an order would have a chilling effect on their ability to promise confidentiality to sources; and eventually the ECHR agreed with them.
The news organizations were right to fight the court case. If you can be forced to turn over fake documents received anonymously, you can be forced to turn over real documents received from known sources, or even be forced to reveal the names of those sources.
At the same time, however, none of these media outlets had ever promised confidentiality to the leaker, or even knew who the leaker was. Quite the opposite, in fact: the whole purpose of the leaker’s exercise was to make the fake document public. Eight years on, Interbrew would probably never need to go to court in the first place: a good editor, after making the decision to run with the story, would naturally and automatically make the document freely available online. Especially if doing so distinguished that media outlet from others who only reported the contents, rather than publishing them.
News organizations are getting pretty good, these days, at putting primary documentation on their websites — although the New York Times, in particular, which has an otherwise excellent website, is surprisingly bad on that front. It’s one of the most profound ways in which the web is changing journalism: readers are no longer satisfied with trusting a journalist’s account of what a document says, and want to read the document itself. Most of the time, so long as you’re not breaking a promise to a source, journalists should allow them to do just that: it was, after all, readers, not journalists, who worked out that the Killian documents were forgeries.