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Protecting journalists’ sources

The European Court of Human Rights ruled yesterday that the UK violated the right to freedom of expression by failing to protect the identity of journalists’ confidential sources.  The decision (Financial Times v UK) arises from a case called Interbrew v Financial Times, in which the courts ruled that newspapers must deliver to a company leaked documents, to help that company discover who was responsible for the leak.

The European Court’s decision is critical of the domestic courts for accepting some of  the company Interbrew’s arguments without sufficient evidence or investigation. While the law does provide some protection for journalists’ sources and the courts have made strong statements of principle, the track record on protecting those sources on the facts of each case is at best mixed. The Interbrew decision was, at the time, widely criticised in the media, and the Strasbourg Court’s decision suggests that domestic courts should be more reluctant to disclose material that could identify a source.

By way of background, in 2001 an unknown person leaked a confidential document to a number of newspapers, concerning Interbrew’s possible takeover of a competitor in the brewing industry. Several newspapers published stories based on this leaked document. Interbrew hired a security company to discover who was responsible for the leak, but they failed to identify the source. The company then sought a court order compelling the newspaper to disclose the documents, in the hope that this would reveal the source of the leak.

Courts are empowered to compel such disclosure in order to identify a wrongdoer (the wrong in this case being a breach of confidence). However, that does not end the enquiry and s.10 of the Contempt of Court Act 1981 provides:

No court may require a person to disclose, nor is any person guilty of contempt of court for refusing to disclose, the source of information contained in a publication for which he is responsible, unless it be established to the satisfaction of the court that disclosure is necessary in the interests of justice or national security or for the prevention of disorder or crime.

So before the court could order disclosure to Interbrew, it had to be satisfied that the order was necessary in the interests of justice. The court found this test to be fulfilled – the central reasons being: (1) that the purpose of the source in leaking the document had been to harm Interbrew and the interests of its investors; (2) having undertaken an internal investigation and hiring a security firm, there were no less restrictive alternative means that Interbrew could pursue to protect their interests.

The Court of Appeal’s ruling was greeted with hostility in the press. In particular, it was thought the potential chilling effect on anonymous sources could have a significant impact on financial journalism, which often relies heavily on inside sources. The newspapers refused deliver the documents, but – following the media pressure – the court order was not enforced by Interbrew. Despite this, the ruling was nevertheless challenged by the newspapers as violating Article 10 of the European Convention.

In relation to the first reason for the order, the European Court of Human Rights accepted that the purpose of the source could be relevant, but added that it is just one factor that can be taken into account and that ‘the conduct of the source can never be decisive’  in determining whether to order disclosure. On the facts of the case, the Court found ‘the legal proceedings against the applicants did not allow [the source’s] purpose to be ascertained with the necessary degree of certainty.’ Given the lack of certainty, the Court felt that significant weight should not be placed on the source’s purpose.

On the second point, the Strasbourg Court found the domestic courts had been too quick to conclude that Interbrew had done all that was possible to identify the source. In particular, the Strasbourg Court found:

full details of the inquiries made were not given in Interbrew’s evidence and the Court of Appeal’s conclusion that as much as could at that time be done to trace the source […] was based on inferences from the evidence before the court.

The strong protection of journalists’ sources is to be welcomed. The case does, however, highlight the evidential difficulties when the identity of a source is unknown. The suggestion from the European Court is that such uncertainties should be resolved in the favour of the media.

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