Need to Protect Journalists and Sources

There is a substantially large public interest involved in protecting journalists and their sources within the United Kingdom (UK). This is largly reflective on the fact that the UK is one of a democratic community rather than that of a dictatorship, which means the government in power at any given time is a reflection of the opinion of members within the UK community. Opinions within the community are normally obtained through various sources of information through journalism. Therefore freedom of expression is a fundamental concept to that of the UK and integral in allowing the community to form an opinion based on insider information and free from being minipulated by the government in power at any given time. If no protection was offered in this area it would almost certainly lead to the UK media being largely biased as sources would be afraid to come forward in fear of losing their jobs or even much more, which is supported by this statement “they will not get information, for example, about abuse of powers within government, or dubious business practices, unless insiders feel able to reveal what is going on without risk of their identity being disclosed”. [1]

This need to protect journalists and their sources has been recognised for a number of years prior to any form of statute, however very little was done and in most legal proceedings refusal to name a source would lead to the journalist being held in contempt of court and with that carries the burden of fines or even imprisonment. Dpp v Channel 4 [2] . In X v Morgan Grampian [3] , Lord Bridge expresses his annoyance with journalist who refuse to disclose their sources, “In a case where a contemnor not only fails wilfully and contumaciously to comply with an order of the court but makes it clear that he will continue to defy the court’s authority if the order should be affirmed on appeal, the court must have a discretion to decline to entertain his appeal against the order.” [4] Obviously common law was around but it did very little to offer protection and in fact as far as the issue of contempt is concerned, common law only recognised three different issues to be in contempt, which are; interfering with pending or imminute court proceedings, contempt in the face of the court, and lastly scandalising the courts.

Section 10 of the Contempt of Court Act 1981 was established through the case of Sunday Times v UK [5] and gave journalists and their sources protection through statute, from having to disclose a source unless it is held to be absolutly necessary. It was held in Secretary of State for Defence v Guardian Newspapers [6] , that this would too be the case with indirect disclosure, so where the journalist may not necessarily know the identity of the source themselves, but, by returning the documents with the informtion in question it would possibly lead to the source being uncovered. In the case of Maxwell v Pressdram [7] , the Court of Appeal made clear that the section 10 CCA requires the disclosure to be ‘necessary’ and “emphasized that this did not mean ‘important’ or ‘releavant’” [8] The purpose of the Act, was that in a society such as the UK where democracy is ripe, there is a pressing need to protect journalists and their sources from disclosure orders, and therefore suggesting that the freedom of expression carries a greater public intererst concern then that of the protection of administration of justice. In consideration of the importance of freedom of expression disclosure will be deemed necessary if it falls within one of the following categories which are seen to tilt the scales of whether it is in the public interest or not towards a disclosure order being granted.

Firstly, there is the exemption in relation to ‘preventing disorder or crime’. This will almost always result in a disclosure order as the overriding public interest is seen to be so great that disclosure is almost certain. This is because if the granting of a disclosure order may result in the prevention of a criminal activity or public disorder this is seen to be a greater public interest then that of one individual. However, in Re an Inquiry under the Company Securities (Insider Dealing) Act [9] , “the House of Lords held that the interests of the prevention of crime did not require the person seeking disclosure to identify any particular crime or crimes that might be committed”. [10] This therefore allowed for action to be brought under this exemption even where there may not have been criminal activity or public disorder, as long as the court was satisfied that not allowing a disclosure order to be granted would possibly lead to a future problem with regards to criminal activity or public disorder.

Therefore, although this exemption to section 10 CCA could clearly be seen as necessary in certain circumstances where protection of the whole community will be seen as a greater public interest than that of the individual, it does seem that there is an issue of necessity, proportionality and perhaps abuse judicial power. The fact that no particular crime needs to be identified is an issue of whether it is proportionate to the infringement of an individual’s freedom of expression. In order to conclude on this exemption, it would be necessary to discuss that all though necessary in order to protect the community, more stringent restraints would need to be placed in weighting up the two important issues that of the individual and the community as a whole.

Then there is the issue of ‘national security’, which is another way of almost certainly guaranteeing a disclosure order will be granted. This is because, the issue of national security is one that is seen as a more superior public interest as it potentially will involve the entire state, as apposed to that of an individuals freedom of expression. Information regarding national security is generally information that needs to be kept out of the public domain for the benefit of the state and for this very reason will almost every time prevail. If information has already been disclosed and the exception cannot be found within the interest of justice, or if the information disclosed is not in itself an issue of national security, the disclosure order may still be granted on the grounds that for this confidential information to be leaked, the source of the leak would more than likely be an employee of the government and therefore would have been trusted to keep this information confidential. This will allow the government body to identify and remove the employee (source) in fear that if they were to remain unidentified and continue in their employment they could provide future risks to national security. (Secretary of State for Defence v Guardian [11] )

This is an exemption which can be seen as quite controversial as on the one hand obviously the government needs to keep such high risk matters out of the public eye, but the question in this case is whether it is truely proportionate and necessary to infringe upon such an integral part which forms the UK community such as freedom of expression when national security has not been breached at the time but as a safe guard for the future. I would certainly look at this matter in terms of prevention is better than cure, however, this could be frowned upon as the UK have always had the view that an individual is innocent until proven guilty and the assumption that one would leak such confidential information would be fitting with the traditional view that judges have on sources, in so much as they are sterotypically leaking information to benefit themselves and their greedy needs.

Lastly, is the exception found under if it is in the ‘interest of justice’. This is largly decided on the facts of the case in question and whether or not there is any reason to believe that the disclosure of the information in question, had a substantially fundamental effect to the individual concerned or the public as a whole. Traditionally, courts have been rather unwilling to rule in favour of this circumstance in order to grant a disclosure order and so this exception is generally only used in case where the impact is exstreme. In considering whether or not a disclosure order is to be granted under the exemption of ‘interest of justice’, the courts will consider the issue of whether or not it is ‘necessary’, in doing this the court will take into consideration; firstly the consequence to the party seeking the disclosure order, if it were to be refused. The nature of the information is paramount as the greater the public interest, the higher the need to protect the source from being disclosed. And finally, the courts will consider the conduct of the source when the information was obtained. ( Norwich Pharmacal (1974))

Although generally judges views on journalist sources are sterotypically disloyal, it is not up to the discretion of the unelected judge, but rather one of the public interest in disclosing the source which is of such high importance, that a breech in their freedom of expression would be proportionate. As time has gone on section10 has been largley decided in this area concerning ‘interest of justice’ by the interpretation of judges in certain cases and of course presendent.

One very important case in the eyes of the law was that of Ashworth Hospital [12] , where Laws LJ introduced

“the ‘chilling effect’ of court orders requiring the disclosure of press sources is in no way lessened…simply because…the information actually published is of no legitimate, objective public interest…” [13] So basically it does not carry any relevance as to the nature of the information or the intention of the source whether the source has good intentions or whether the intentions are for greed and nothing else.

This could however be held to be in contrast of the decission in X v Morgan Grampian [14] , where the House of Lords namely Lord Bridge held (prior to the case of Ashworth) that the ‘interest of justice’ exception could be used even where there was no intention to prosecute, allowing employers to pinpoint the disloyal employee and dismiss the individual. Even though this was clearly not the purpose of section10 and when the case was appealed in the European Court of Human Rights (ECtHR), they had found that Lord Bridge’s decision was in actual fact a breach of the journalists Art 10 right. The ECtHR found that a disclosure order would be disproportionate since an injunction stopping the flow of the information had already been issued, and the fact that the employee wanted the disclosure order purely to identify the disloyal source and possibly dismiss the individual was not sufficient in breaching an Art 10 right or even section 10 CCA.

In Camelot Group v Centaur Communications (1998) [15] the Court of Appeal (CA), supported the decision in the domestic courts that a disclosure order may be issued in order to identify the source as a disloyal employee and had taken action upon this employee accordingly. This was a bit of a shock as it completely disregarded the case of Goodwin v UK (1996) [16] , and therefore the decision made by the ECtHR that ordering a disclosure order under these conditions was a breach to Art 10 and therefore section 10 CCA. Normally a great deal of weight is given to decisions made in the ECtHR, which is why this decision within domestic law was out of the ordinary.

Saunders v Punch (1998) [17] is an example of the courts considering the ECtHR when coming to their decisions, as Lindsay J, a High Court judge approved of the decision held in Goodwin and too refused to grant a disclosure order.

In one of the most recent cases; Financial Times & Others v Interbrew SA [18] the House of Lords granted a disclosure order on the grounds that section 10 CCA was established after a need for press freedom and not to simply allow disloyal employees to remain unidentified. This is again in contrast to the decision of the ECtHR in Goodwin, where it was held that a disclosure order issued with the sole purpose of identifying a disloyal employee is not one which carries weight in relation to a fundamental right such as freedom of expression. The case was then heard in the ECtHR, Financial Times Ltd and Others v United Kingdom [19] , where the decision was unanimously in that once again, an individuals right to freedom of expression and so Art 10 was infringed upon in UK legal proceedings. In its judgement the ECtHR held “That interference was authorised by a principle of common law (Norwich Pharmacal [20] ) whereby if a person through no fault of his own becomes involved in the wrongdoing of others so as to facilitate that wrongdoing, he came under a duty to assist the person who had been wronged by giving him full information and disclosing the identity of the wrongdoer) and by section 10 of the Contempt of Court Act 1981″.