Does “On Background” Mean What You Think?

March 7, 2022

A big part of our job is helping lawyers prepare to speak to legal media reporters about important trends in the industry. Sometimes those stories involve sensitive information that the reporters want and lawyers don’t want to give, or that lawyers are willing to speak cautiously about as long as their name isn’t printed in the story. The “rules of attribution” — the code journalists follow to tell readers where information in a news story comes from — allows sources to protect their identity in some cases, outlined below.

The most important thing to understand is that speaking “not for attribution,” “on background” or “off the record” must be negotiated at the beginning of the conversation. And a source cannot unilaterally declare that something is off the record. Both the reporter and the source must agree to these terms before the information is shared. This up-front agreement protects both the reporter (who needs to be transparent with readers about sourcing to maintain credibility) and the source (who deserves to understand clearly how the information will be used).

If you overshare, you can ask the reporter after the fact not to use that material. Maybe the reporter is a nice person — or wants to protect their relationship with you over the longer terms — and will agree to withhold it. But maybe not. The rules of attribution work as an honor system. They are not legally binding.

Because things can go awry with this process, we tell our clients that they should assume anything they say to a reporter will be on the record. If you are considering sharing information that could jeopardize a client relationship or your position at the firm, don’t do it.

But if you have a story that must get out and you are confident in the reporter’s ability to protect your identity, here are the terms reporters use to describe anonymous sources. The definitions of these may vary slightly from reporter to reporter, so before moving ahead, make sure you both agree on the boundaries:

“Not for attribution”: The reporter may quote you directly but may only identify you with a general description, such as “a Big Law managing partner.” Exactly how you are described is something the two of you will negotiate. Keep in mind that even if you are not identified by name, it may be obvious to your peers that the quote came from you. Proceed with caution.

“On background”: Most reporters understand this to mean that the information provided cannot be quoted or attributed but may be paraphrased in the story and also used by the reporter to better understand the context of the events, which might lead to the discovery of new information or new sources.

Off the record”: This is a close cousin to “on background.” Most reporters understand it to mean that the information provided is not for publication, period. However, a reporter can use this information without attribution with another source to verify that it is true.

Reporters want to provide their readers with as much transparency as possible. Lawyers who might be sources in legal media stories want to protect themselves and their clients from unwanted scrutiny and attention. But the interests of reporters and sources aren’t always in direct opposition. In some cases it makes good sense to cooperate and share information — as long as both parties have a clear understanding of the terms, and the source enters the conversation with a healthy dose of skepticism.