Open Mic

Recently, Fortune Ran a Story About Steve Jobs Being Treated for Cancer in 2009. Jobs Did Not Release This Particular Info. Fortune Said It Was Told This Info 'Off-the-Record.' The Source Then Died and Fortune Used the Info. Huh? Wasn't That Unethical?

Chuck Ross Posted February 3, 2011 at 8:04 AM

Last month, when it became known that Apple CEO Steve Jobs was going to be taking another leave of absence, Time Warner's Fortune magazine ran a story with information that heretofore had not been public: that Jobs had been treated for cancer in Switzerland in 2009.

Now, it's not a secret that Jobs has had cancer. But this particular information had not been made public by Jobs or anyone else. The article in Fortune said the author of the article had been told this information off-the-record by a source. The source had subsequently died, so the information was no longer off-the-record, the article said.

As a working journalist for about 30 years, here’s my take on this. Let’s say I’m going to write a story about the mayor of your town, and I interview you. During the course of our interview you say, “Off-the-record, I know for a fact that my sister-in-law is having an affair with the mayor,” and then you tell me why you know this is a fact.

Since I only know this information because you’ve told it to me off-the-record, I cannot use this information in the article I’m writing about the mayor.

Then, let’s say you drop dead six months later. I CANNOT then write another article saying that the mayor had been sleeping with your sister-in-law, and I know this because you told me this information off-the-record but now that you’re dead I can use the information.

Now, I COULD use that information if we had worked out an agreement wherein you had told me, “Listen, you can’t tell from looking at me, but I’m very sick and I’ll probably die soon, and after I die you can use that information about my sister-in-law and the mayor.”

However, in all my years as a journalist, I’ve never had that latter conversation with someone after they’ve told me something off-the-record. A conversation like that just wouldn’t come up.

So here’s what Doron Levin, a contributor to Fortune and the author of the article in question, wrote about Steve Jobs in Fortune that appeared online on Jan. 18, 2011:

“It wasn't until June 20th, two months after the fact, that the Wall Street Journal uncovered the fact that Jobs had undergone a secret liver transplant at Methodist University Hospital in Memphis, Tennessee. However, during that absence, Fortune can report, Jobs also took an unpublicized flight to Switzerland to undergo an unusual radiological treatment at the University of Basel for neuroendocrine cancer, according to Jerry York, the Apple (AAPL) director who died in March 2010.

“Yesterday, Apple announced the third known absence by Jobs for medical reasons over the last 7 years. York told me about the treatment, which was not available in the U.S., in the context of our discussions about Jobs, his health and Apple's future. Under our agreement at the time, York wanted the facts of Jobs's treatment in Switzerland to remain out of the news. He didn't say whether the board knew of it. (With York's death, the off-the-record agreement is no longer in place.)"

Let me repeat that last line: "With York's death, the off-the-record agreement is no longer in place."

I was appalled as I read this, and fired off an email to Fortune Managing Editor Andrew Serwer. Part of what I wrote in the email was “my understanding of 'off-the-record' is different than Levin's. I would consider the record forever off-the-record unless a source told me otherwise. If the source dies, the off-the-record comments would remain so.

"I want to write about this incident in my blog and I would appreciate any thoughts you could contribute as to why any off-the-record comments become on-the-record the moment the person who gave you the off-the-record comments dies."

Serwer emailed back that he was traveling but that someone from Fortune would get back to me. 

Someone did, in an emailed statement sent to me from Fortune’s director of public relations. The Fortune statement read, “Doron and York had an agreement; the agreement is private but Doron is operating under the guidelines of what they had discussed. Fortune does not believe that the death of a source gives journalists the blanket right to publish previously off-the-record comments and that's not the case here."

However, what exactly the case was here--the "private" agreement between Doron and York--Fortune wasn't willing to say.

Next I did a little research, and found out that York, 71, had collapsed at his home due to a “massive cerebral hemorrhage” and had died the next day. I also read that he was a heavy smoker, but I could not find any article saying that he had cancer or knew that he was going to die.

I find it very odd that Doron Levin would have made some sort of agreement with York wherein York said something like “I'm going to die soon and you can use the information on Jobs, that I gave you off-the-record, when I die.”

I assume Fortune asked Levin exactly what his agreement was with York before it printed the story, but, as I said, Fortune wasn’t sharing with me or any of its other readers the content of that agreement. 

So then I tracked down Levin and called him at work. I got his voice answering machine and left a message.

I then followed up and sent him an email at his work email address. I explained who I was, that I was going to write about this issue in my blog, and then I wrote, “I was hoping you could explain why Mr. York’s off-the-record conversation with you became no longer valid when he died.”

Levin emailed me back thanking me for my inquiry and then wrote, simply, “My agreement with Mr. York was confidential.”

I find that simply bizarre. Levin wrote the information York gave him in Fortune magazine for all the world to see. Levin freely admitted in that piece that York told him the information “off-the-record.” And then the only explanation Levin gave for making public the off-the-record information is that “With York’s death, the off-the-record agreement is no longer in place.”

Furthermore, the publication that published the piece, Fortune, also would not explain this, other than to say, basically, trust us, this is OK.

In light of the darkness here, the almost total lack of transparency about the York/Levin agreement that would tell readers why this is OK, it’s not OK. It’s unethical. You can’t use information that someone gave you off-the-record.

While this may seem clear, as it happens there is actually NOT clarity about what off-the-record means, either among journalists or among the public.

Here are a few examples that I’ve personally experienced.

One time I received a call from a top TV executive who was mad as hell that we had published an article with remarks that he claimed he had told our reporter were off-the-record. As the editor, I called the reporter into my office and asked him if this could possibly be true.

Here was the reporter’s response: “Of course I used it. Yes, it said it was off-the-record, but he didn’t say it was not-for-attribution.”

Upon further interrogation it turned out this reporter, who had been reporting for about a decade, was confused by these terms, and was actually shocked when I explained to him that if someone tells you information off-the-record you can’t publish the information, and that the meaning of not-for-attribution is that you can use the information, but you can’t name the person who gave it to you.

Here’s another example, this time from the perspective of the person being interviewed. One of my reporters went to a lunch where it was agreed he would interview someone and tape it. I tagged along.

As the reporter put the tape recorder on the table he told the person he was going to interview, “Let’s keep this very simple. We’ll tape this and I’ll be free to publish anything you tell me, unless you tell me that it’s off-the record.”

The interview was going fine, and every so often the person who was being interviewed--who was an ad sales executive for a cable network--would say that something was off-the-record.

At one point the executive started talking about some of his advertisers, by name, and complaining about them. Since he didn’t say any of this particular information was off-the-record, it appeared in the article.

It was about five minutes after publication that I received a call from him, and he was very angry that his trash talk about his clients appeared in print.

I replied that the rules of the interview had been clear, and that he had said certain information was off-the-record but he had never said that the negative remarks he had made about the advertisers were off-the-record.

He answered that he had known the reporter for years, and that the reporter should have known him well enough that he didn’t want the negative remarks used, despite the fact that he’d never said they were off-the-record.

So even though the rules for the interview had been explained and understood, the interviewee was still surprised because he thought his relationship with the reporter trumped those rules. Caveat Emptor needs to be invoked whenever you are interviewed by a reporter, no matter how well you think you know him or her. Make sure you know the rules about what you say that can and cannot be used for publication.

The confusion about off-the-record seems to be widespread. In searching this topic on the Internet, I came across a 1999 article by Timothy Noah on Slate’s Chatterbox column. The article is titled “For the Record, What “Off-the-Record” Means”

Noah interviewed, separately, five journalists at The Washington Post on the meaning of various terms in journalism, including off-the-record. He wanted honest answers, so he chose not to identify the Post reporters by name. Here’s what the five reporters had to say about off-the-record:

Postie No. 1: "Most of the time, when people say off the record, they don't really mean it ... I have no idea what 'off-the-record' means."

Postie No. 2: "When people try to tell me something is off-the-record, it means you can't use this ... I just try not to have off-the-record conversations."

Postie No. 3: "It means that you can't use it unless you are able to report it." The source is "giving you a tip that you can go report as kind of a blind tip." But, in this person's view, the reporter may not tell other sources that he's been told this information, even if he refuses to provide clues as to the tipster's identity."

Postie No. 4: "Means you can't quote me. No, I don't remember ... You can't attribute, but you can use it? No, I take that back. If someone says 'off-the-record,' you can't use it at all."

Postie No. 5: "Nowadays, off the record means--usually it comes in the middle of the interview, and somebody says, 'Can we go off-the-record?' and you say yes or no." According to this person, if the reporter says yes, then the rules are the same as in "not-for-attribution."

Noah goes on to tell a story about the Post’s legendary reporter Bob Woodward. According to the story, one of Woodward’s sources--Jane Sherburne--was upset when she saw something she had told Woodward off-the-record in print. Woodward claimed he got the off-the-record information confirmed from other sources. Wrote Noah, “it seems that Sherburne and Woodward didn't have the same understanding of what 'off-the-record' meant. In this instance, Sherburne seemed to think it meant 'don't use at all,' while Woodward seemed to think it meant 'use if you can get from another source.' "

Personally, whenever I’ve reported, I’ve been fortunate that I’ve never had a problem with off-the-record. One reason for that is probably because I’ve always bent over backwards to be crystal clear with those I interview what my understanding is of common journalistic terms and tools such as off-the-record, not-for-attribution and background, and making sure that I’m on the same wavelength as those I interview. I've even called sources back to make sure they were OK about what they said that would be in print.

I know other reporters who have told me they'd never do that, for fear that something juicy the source had inadvertantly said would be taken back.

My philosophy about that is that I've always felt my readers would be much better served if I had a great continuing relationship with a source rather than trying to burn my source because I knew that he or she had let something slip that they had not meant to make public. And over the years I don't think any reporter I directly competed against got more "scoops" than I did. 

Furthermore, I’ve never had any “secret” or “private” agreements such as the one Levin and Fortune claim Levin had with York.

In other words, I’d never write a sentence like the one Levin did that “With York’s death the off-the-record agreement is no longer in place.”

A line I COULD see myself writing would be: “With York’s death the off-the-record agreement is no longer in place because York had told me that if he died I could use the information.” Or whatever the deal had been.

Clearly there’s already enough confusion about the terms we journalists use to gather information without the added obfuscation used by Levin and Fortune in the way they handled the disclosure of Jobs’ personal medical history.#