By Gill Phillips
Disclosure of sources is one of the more tricky areas for media lawyers and journalists. But the importance of sources to journalists cannot be understated: they are a reporter’s meat and drink. Even more so is the confidential source, who asks for anonymity because more often than not they are an insider, a cuckoo in the nest, and whose job or livelihood may be at risk if they are identifiable.
Journalists would find it difficult to gain access to places and situations where they can report on matters of public interest and fulfill their role as watchdogs if they cannot when necessary give a strong and genuine promise of confidentiality to their sources. If they cannot guarantee a source’s anonymity, then they may not be able to report at all.
As Lord Denning said in a 1981 case (British Steel Corporation v Granada Television Ltd):
“If [newspapers] were compelled to disclose their sources, they would soon be bereft of information which they ought to have. Their sources would dry up. Wrongdoing would not be disclosed. Charlatans could not be exposed. Unfairness would go unremedied. Misdeeds in the corridors of power, in companies or in government departments would never be known.”
But there is an immediate tension here: one side will view such a source as a disloyal, untrustworthy employee who needs to be found and removed; the other side sees them as a whistleblower acting in the public interest. This dichotomy is best illustrated in the different attitudes taken toward some high-profile leakers who have not sought to protect their identity, such as Chelsea Manning and Edward Snowden.
Source Protection: UK Law
While source protection is at heart an ethical issue for individual journalists, nonetheless the importance of confidential sources has been recognised in many jurisdictions. According to a 2007 report by Privacy International, more than 100 countries around the world have legally recognised the right of journalists to protect their sources.
United Kingdom law offers a qualified statutory protection to journalists against divulging confidential sources. Section 10 of the Contempt of Court Act 1981 (CoCa) provides:
“No court may require a person to disclose, nor is the person guilty of contempt of court for refusing to disclose the source information contained in the publication for which he is responsible, unless it is 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.”
In practice, the protection of sources under Section 10 has been interpreted narrowly by the UK courts, which have frequently ordered disclosure. The Court must only permit disclosure on one of the four specified grounds. An order to disclose for other reasons—for example, to protect public health—is not allowed. Proof that disclosing the source is merely “convenient” or “expedient” is also insufficient. The Court must also determine whether the information is really necessary, and must weigh the importance of the specified ground against the “journalist’s undertaking of confidence.” The Court also retains the discretion to refuse to order disclosure even when the conditions for an exception are met.
How UK Courts interpret “interests of justice”
The UK courts have given a broad (and therefore, for journalists, a rather unhelpful) interpretation to the meaning of “interests of justice,” as specified in Section 10 of the CoCa. In Secretary of State for Defence v Guardian Newspapers (1985), the House of Lords restricted the meaning to “technical sense of interests of the administration of justice in the course of proceedings in a court.”
But in the Morgan Grampian case (see under “UK Case Law”), the House of Lords took a much broader approach and said that “interests of justice” is not confined to the technical sense but rather is wide enough to include the exercise of legal rights and self-protection from legal wrongs, whether or not by court action. This broader approach was confirmed by the House of Lords in Ashworth Hospital Authority v MGN Ltd (2002) where the definition of “interests of justice” in Section 10 of the CoCa was held to be wide enough to include cases where the injured party sought some form of lawful redress other than litigation.
UK Case Law
In X Ltd v Morgan-Grampian (Publishers) Ltd (1990), William Goodwin was a trainee journalist with The Engineer magazine, published by Morgan Grampian. Goodwin received information regarding the financial status of the computer software company, Tetra. He was given the information by telephone from a source who wished to remain anonymous and who appeared to have obtained the records from a confidential corporate plan. The company obtained a court order compelling Goodwin to divulge the identity of his source. Goodwin unsuccessfully appealed to the Court of Appeal and House of Lords. He refused to disclose his source and was fined £5,000 for contempt.
He then complained to the ECtHR on grounds the order was a violation of Article 10 of the Convention. In Goodwin v The United Kingdom (1996), the ECtHR ruled that there had been a breach of Article 10 and acknowledged that the protection of journalistic sources “is one of the basic conditions for press freedom.” According to the Court:
“Without such protection, sources may be deterred form assisting the press informing the public on matters of public interest. As a result the vital public watchdog roles of the press may be undermined, and the ability of the press to provide accurate and reliable information be adversely affected.”
In Camelot v. Centaur Communications (1997), a journalist received a copy of the financial records of the plaintiff company (Camelot, which runs the UK national lottery) from a confidential source and published an article based on that information some six days before the company was due to release it. Camelot obtained an order restraining the journalist from using the accounts in question and from publishing or distributing the confidential information. The journalist was also ordered to deliver the accounts to the company, as this was expected to identify the source of the leak, who was suspected of operating at a high level.
UK Courts: Frequently Order Disclosure
Protection of sources under Section 10 of the Contempt of Court Act 1981 (“CoCa”) has been interpreted narrowly by the UK courts, which often order disclosure. The usual method of forcing disclosure of a source by the UK courts is known as the Norwich Pharmacal procedure, named after the 1974 case of Norwich Pharmacal Co. v Customs and Excise Commissioners, a case concerning the alleged patent violation by unknown importers of a patented chemical. While first developed in relation to intellectual property, Norwich Pharmacal orders are now granted in relation to other torts, including defamation and breach of contract, as well as alleged criminal offences.
More recently Norwich Pharmacal orders are used against internet hosting services and internet service providers to identify users which have allegedly engaged in wrongdoing. The respondent must be involved in a wrongdoing, whether innocently or not. Such orders will only be granted where “necessary” in the interests of justice. Although it is still a developing area of law, there is authority that indicates that a Norwich Pharmacal order can probably be made in one jurisdiction to identify a defendant for the purpose of proceedings in another jurisdiction.
On appeal, the company argued that the existence of a whistleblower at such a high level was damaging to the company. The Court of Appeal, upholding the order that the journalist disclose the source, referred in some detail to both the House of Lords and ECtHR judgments in Goodwin. The Court of Appeal held that while in Goodwin the courts were concerned with further disclosure of the same information, in Camelot v. Centaur the concern was with the possibility of future disclosure of additional information since dissemination of the draft accounts posed no further threat, as the company had itself released the information. However, it could be argued that this is a distinction without a difference. At stake in each case was a company’s desire to identify and take action against the whistleblower, in order to prevent further damage to the company in the future.
Unlike the ECtHR in Goodwin, the Court of Appeal in Camelot focused on the particular source rather than the general importance of sources to journalists. It took the view that the public interest in protecting some sources was greater than in protecting other sources. In this case, the Court ruled that source was not worth protecting
In Mersey Care NHS Trust v Ackroyd (No 1), (2007) the Court of Appeal recognised the main variants at play in a source disclosure case: the public interest for employers in investigating and plugging leaks and the free speech rights of the journalist. The Court recognised that an order for disclosure of journalistic sources was an interference with a journalist’s right to freedom of expression, which could not be justified unless an overriding requirement in the public interest could be shown. An article in the Daily Mirror had referred to and quoted from the clinical notes relating to the “Moors” murderer Ian Brady, which were held at Ashworth Security Hospital, where he was detained, on its computer system. The hospital concluded that an employee, in breach of contract, must have leaked the notes to the press. The journalist who wrote the article had received the notes not directly from an employee at the hospital but through an intermediary.
UK Courts and European Standards
The UK’s fairly weak position on source protection has been bolstered, inter alia, by reliance on a number of European influences, including:
The 1994 European Parliament Resolution on the Confidentiality of Journalists’ Sources, the Resolution on Journalistic Freedoms and Human Rights, (adopted at the 4th European Ministerial Conference on Mass Media Policy (Prague, 7-8 December 1994);
The Council of Europe Recommendation No. R (2000) 7 on the right of journalists not to disclose their sources of information;
In addition, a number of European Court of Human Rights cases have expressly recognised that source protection falls within Article 10 of the Convention.
The House of Lords upheld an order for disclosure of the name of the intermediary (see the Ashworth Hospital v MGN litigation), which the Mirror then revealed. The hospital then pursued Ackroyd, the intermediary (and a freelance journalist), for the name of his source. He refused. The Judge at first instance ordered him to reveal the source. Ackroyd appealed.
The Court of Appeal considered whether the source might have a public interest defence; if they did, then there would be no wrongdoing, and there would be no basis for ordering disclosure under the Norwich Pharmacal disclosure regime.
Even without a public interest defence, it was arguable that the public interest in the non-disclosure of medical records may not outweigh the public interest in confidentiality of the source. The amount of time that had passed since the article was published meant that it was arguable that there was no pressing need for the disclosure.
The Court of Appeal acknowledged “it is now clear that the approach of the English courts to both section 10 of the 1981 Act and Article 10 of the Convention should be the same.” Notwithstanding this, the 2012 Leveson Report recommended weakening the source protection rights of journalists by suggesting that the definition of excluded material in the Police and Criminal Evidence Act 1984 (PACE)—which sets out the conditions under which police can seek to obtain unpublished confidential journalistic source material—“be narrowed. Under PACE, journalistic material that is held in confidence falls within a very limited set of access conditions.”
Leveson recommended that confidential journalistic material should only be capable of being protected “if it is held, or has continuously been held since it was first acquired or created, subject to an enforceable or lawful undertaking, restriction or obligation.” This would potentially exclude material that a journalist has obtained under illegal circumstances, which would potentially exclude a substantial body of potentially important journalistic material from protection under PACE (e.g. the Daily Telegraph and the stolen MPs expenses CD). It also appears to suggest that there has to be an express obligation of confidence between a journalist and a source in order for the source qualify for legal protection.
In Sanoma v Netherlands ECtHR (2010), the Dutch Government attempted to argue that the journalists should be required to prove what they had agreed with sources and particularise on what basis (and with whom) confidentiality had been promised (see para 53, and Grand Chamber para 64). However, the ECtHR held that:
“… although the question has been the subject of much debate between the parties, it is not necessary to determine whether there actually existed an agreement binding the applicant company to confidentiality. The Court agrees with the applicant company that there is no need to require evidence of the existence of a confidentiality agreement beyond their claim that such an agreement existed.”
Courts: On Weighing a Source’s Motive
However, relying on “confidential sources” is not always going to succeed. The courts still have to balance the public interest between protecting a source and ordering disclosure of their identity.
This can be seen for example in the recent case of Stichting Ostade Blade v Netherlands (App 8406/06, 27 May 2014) in which the Court held that an Article 10 application by a Dutch magazine arising out of a police raid was inadmissible.
The purpose of the police raid, which had been legally sanctioned via a Court approved warrant, had been to obtain a letter, referred to in a press release issued by the magazine, which claimed responsibility for a bomb attack. The Court found that the order to hand over the letter, followed by a search of the premises when this was not obeyed, constituted an interference with the applicant’s right to “receive and impart information.”
The Court accepted that the author was not a “journalistic source,” and noted that the applicant’s argument was based on the premise that the case concerned the protection of journalistic sources. It reiterated the importance of the press as “public watchdog” and the importance of ensuring that individuals remain free to disclose to the press information which should properly be accessible to the public. However, the Court went on to point out that not “every individual who is used by a journalist for information is a ‘source’.” In this case, the magazine’s informant was not motivated by the desire to provide information which the public were entitled to know. Rather, the Court said that “his purpose in seeking publicity through the magazine Ravage was to don the veil of anonymity with a view to evading his own criminal accountability.”
The Court went on to point out that:
“It is undeniable that, even though the protection of a journalistic ‘source’ properly so-called is not in issue, an order directed to a journalist to hand over original materials may have a chilling effect on the exercise of journalistic freedom of expression. That said, the degree of protection under Article 10 of the Convention to be applied in a situation like the present one does not necessarily reach the same level as that afforded to journalists when it comes to their right to keep their ‘sources’ confidential.”
In this case, the Court was satisfied there was a public interest in the police searching for the letter. The interference was in accordance with law and pursued a legitimate aim. On the question of “necessity in a democratic society,” the Court noted that the letter was sought as a possible lead towards identifying those suspected of having carried out bomb attacks.
Hence, the protection extended only to the journalist and not to the supplier of information. The issue of the motivation of the source can be vexed. As Guardian editor Alan Rusbridger has pointed out: “there’s never a perfect source… Archbishops don’t leak you documents, generally, so you’re usually dealing with people who have differing characteristics or differing motivations and are often less than spotlessly pure people.”
Such was the central issue in UK in the Interbrew case, in which one of the considerations in ordering disclosure by the Court of Appeal was the perceived “bad motive” of the source. It is arguable that the motive of the source, as opposed to the public interest in the publication, should not be a relevant consideration. Often sources have a number of motives, some of which may be more personal than others. Whether a source has an axe to grind may be relevant for the journalist when deciding whether the source can be relied upon and whether the information is likely to be accurate.
Read next article: Best Practices for Journalists Using Confidential Sources