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The Value of Protecting Sources

The Value of Protecting Sources

Journalists obtain much of their information from people who do not wish their names to be associated with the imparting of such information. Should they be obliged by law to reveal the identity of their informants? This raises controversial issues about freedom of expression and the principles upon which it can be defended against other competing interests. There is a public interest in the protection of a journalist’s source of information and it is recognised by the National Union of Journalists’ Code of Conduct,[1] which provides that a journalist shall ‘protect the identity of sources who supply information in confidence and material gathered in the course of her/his work.’

Should they be obliged by law to reveal the identity of their informants?

Additionally, the law recognises the disadvantages of revealing the identity of journalistic sources as it is presumed not to be in the public interest for such sources to be revealed. This excludes, of course, circumstances where other objectives with an overriding public interest require it.

Equal rights?

It is generally believed that the press should have an equal right to protect the identity of their informants. The main argument for this concept is that the more journalists are forced to reveal their sources (or to give information which might lead to their identification), the less willing future informants will be to reveal information potentially of public concern, such as that regarding official misconduct or criminal activities.[2] Therefore, by obstructing the flow of information, the freedom of the press to inform accordingly on issues of public interest would be restricted.

What appears to be the problem is that the UK’s right to freedom of expression is not clearly stipulated. Freedom of expression is recognised by the First Amendment of the United States:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances

In addition, the European Convention of Human Rights guarantees the principle in Article 10 which states: ‘Everyone has the right to freedom of expression.’ Since the Human Rights Act 1998 came into force in October 2000, the courts have been required to act in a way which is compatible with the European Convention and the rulings of the European Court of Human Rights. They have often been found guilty of violating Article 10 of the Convention. Moreover, freedom of expression in the English legal system is weakened when it comes to balancing Article 10 with other public or private interests, particularly when a newspaper or journalist seeking to protect sources must rely on the general argument of freedom of expression. A more advantageous position is given to the person seeking disclosure, since he may explicitly rely upon direct claims to harm. Where is the line drawn for this balancing exercise?

The values underpinning the prevailing common law view were clearly revealed in the leading case of British Steel… The House of Lords declared that journalists were not entitled to keep the identity of their sources secret, but there existed discretion…

Disclosure at common law

Under common law, journalists have no privilege. The values underpinning the prevailing common law view were clearly revealed in the leading case of British Steel Corp v Granada Television Ltd (1981) A.C. 1096. The House of Lords declared that journalists were not entitled to keep the identity of their sources secret, but there existed discretion not to order disclosure if, on the facts, the public interest in maintaining source anonymity prevailed over the interests represented by the claimant’s action. Being the first case to be decided on these merits, it has led to unfair influence on disclosure of information, with Lord Salmon dissenting from the ruling and expressing that:

[A] free press… cannot, in law, be under any obligation, save in exceptional circumstances, to disclose the identity of the persons who supply it with… information… If this immunity did not exist, the press’s sources of information would dry up and the public would be deprived of being informed of many matters of great public importance: this should not be allowed to occur in any free country.[3]

As a result, at common law, in determining an application for source disclosure the court had to balance the competing interests. Subsequently, the inadequate formulation of Section 10 of the Contempt of Court Act meant that a balancing of interests would continue.[4]

Compulsory revelation of sources

Section 10 of the Contempt Court Act 1981 stipulates the following:

[N]o 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.

It is generally believed that the press should have an equal right to protect the identity of their informants.

From this statement, the Section professes to emphasise the protection of journalists’ sources as the governing public interest, which if necessary may be displaced in maintenance of one of the specified interests or exceptions. Once the court decided that one of the exceptions had been undertaken in any particular case, it then had to establish whether the jurisdiction to order disclosure was raised by the facts. Even though Section 10 confers a qualified privilege to journalists, it also raises a contentious discussion on the subject that protection of journalists’ sources ultimately serves the public interest, bringing it into conflict with the administration of justice.

The intricacies of public interest in relation to non-disclosure were illustrated by Lord Bridge in the case of X Ltd. Respondents v Morgan-Grampian (Publishers) Ltd. and Others Appellants [1991] 1 A.C. 1:

[F]or if non-disclosure of a source of information will imperil national security or enable a crime to be committed which might otherwise be prevented, it is difficult to imagine that any judge would hesitate to order disclosure. These two public interests are of such overriding importance that once it is shown that disclosure will serve one of those interests, the necessity of disclosure follows almost automatically… But the question whether disclosure is necessary in the interests of justice gives rise to a more difficult problem of weighing one public interest against another.[5]

It is essential to note that Section 10 supports the free flow of information as an imperative public interest and highlights the weight of journalistic confidentiality for freedom of expression. However, it is evident that in cases of serious conflicts the court will inevitably give superior support to other values.

Courts imposing to reveal identity of sources

The right to discovery of the identity of any wrongdoer is available for anyone who is involved in the justifiable wrongful acts of others — either innocently or as a joint wrongdoer.[6] This position has been reiterated in Ashworth Hospital Authority v MGN Ltd [2002] 1 W.L.R. 2033. The case arose out of an article published in the Daily Mirror in 1999 which included a verbatim extract of the medical records of Ian Brady (one of the Moors murderers), who was a patient at Ashworth Security Hospital. The records had been taken from the hospital’s computer database so the original source was probably an employee of the hospital. It was decided that:

…Section 10 supports the free flow of information as an imperative public interest and highlights the weight of journalistic confidentiality…

[T]he freedom given to the press is thus not one which the press may exercise without having proper regard to the rights of others, including the right of preserving confidentiality. These judgments of the court confirm the compatibility of the Norwich Pharmacal jurisdiction provided that it is only exercised to obtain disclosure of a journalist’s sources when it is proportionate to do so.[7]

In Interbrew SA v Financial Times Ltd [2002] EWCA Civ 274; [2002] E.M.L.R. 24, Section 10 of the 1981 Act was interpreted on the basis that the source’s motive was to cause mischief:

[W]hat matters critically, at least in the present situation, is the source’s evident purpose. It was on any view a maleficent one, calculated to do harm whether for profit or for spite, and whether to the investing public or Interbrew or both. It is legitimate in reaching this view to have regard not only to what Interbrew assert is the genuine document but also to the interpolated pages; for whether they are forged or authentic, integral or added, they were calculated to maximise the mischief.[8]

The view of the European Court of Human Rights

The European Court of Human Rights has repeatedly emphasised that Article 10 safeguards the substance and contents of information and ideas, as well as the means of transmitting it. The press has been presented with the widest scope of protection in the Court’s case law, including in regard to the confidentiality of journalistic sources. The case of Goodwin v United Kingdom (1996) 22 E.H.R.R. 123 concerned an order served on a journalist (working for The Engineer) to disclose the identity of his source of information on a company’s confidential corporate plan. The newspaper relied upon Article 10. The UK responded by invoking paragraph (2) of Article 10. The Court considered the order excessive and advocated the following:

[T]he protection of journalistic sources is one of the basic conditions for press freedom. Without such protection, sources may be deterred from assisting the press in informing the public on matters of public interest. As a result the vital public-watchdog role of the press may be undermined, and the ability of the press to provide accurate and reliable information be adversely affected. An order of source disclosure… cannot be compatible with Article 10 unless it is justified by an overriding requirement in the public interest.[9]

Taking these matters into account, it was found that the order was disproportionate to the purpose in question and thus could not be said to be necessary, and a breach of Article 10 was established.

Conclusion

If full effect is to be given to the public interest in freedom of information, there must develop a more rigorous approach to proportionality in disclosure cases.[11] Compelling journalists to identify their sources should be committed in exceptional circumstances and only when it is necessary. There is a pressing need for legal coherence for the courts to be able to establish when the measure is necessary and whether the disclosure of journalists’ sources is a matter of public interest.

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