Does a Reporter's Promise of Confidentiality Constitute an Oral Contract?

Posted by Eriq Gardner

Three years ago, about the time that Judith Miller went to jail to protect a source in the Valerie Plame leak case, an in-house lawyer at The American Lawyer gave a seminar to the publication's reporters on how to handle sources. One bit of advice stood out: "Never ever promise a source confidentiality unless you're prepared to go to hell and high water protecting that source," he said.

The lawyer wasn't being high-minded about journalism ethics in this world. Rather, he had a theory that making such a promise could constitute an oral contract between the parties. It was an interesting legal theory. Was he right?

Last week, a jury at the U.S. District Court in Seattle ruled that a BusinessWeek reporter didn't breach an oral contract by naming a Microsoft employee in an article after agreeing to an interview on the condition of anonymity. Peter Tilton, the director of IT audit at Microsoft, had sued McGraw-Hill Companies, owner of BusinessWeek, for at least $1 million for medical expenses, lost wages, and suffering after the published article caused him to lose his job and wife.

An unfortunate situation, of course, but BusinessWeek claimed there was no understanding of confidentiality. The jury agreed, saying no promise existed.

"We do not give a promise of confidentiality lightly," said Steve Weiss, a spokesman for McGraw-Hill. "But we always honor confidentiality agreements when we make them. As the judge and the jury determined, we did not make a promise."

In this age of hostility toward the media, the case certainly doesn't close the door to other claims. The court didn't refute the legal theory that a promise of confidentiality constitutes an oral contract, it ruled only that there wasn't such an understanding in this particular case. Of course, as this case shows, it will be tough for plaintiffs to prove a case. Sources speaking to reporters may wish to bring their own tape recorders to the interview table.

The case wasn't a clear win for the media either. If promises of anonymity imply contracts, that might open the door for journalists who are called upon to provide court testimony under subpoena (like Judith Miller or the reporters in the Barry Bonds BALCO case) to sue the government for tortious interference. Well, that's just one theory anyway.