APPENDICES
into account in determining whether to grant relief. The concept of responsible journalism therefore represents an important part of the factual matrix within which the Court exercises its discretion.
¶2.37 In summary, the object of media proprietors in lobbying for the inclusion of s12 in the HRA
1998 was to prevent the development of privacy law and to prevent prior restraint. It is doubtful that s12 achieves either of these aims. The case law has repeatedly emphasised that s12(4) does not require the court to treat freedom of speech as paramount. The role of s12 is predominantly to establish a test for granting interim relief that differs from the conventional balance of convenience that is considered in civil proceedings, but otherwise adds little to the substantive law of Article 10. The view has been expressed by some human rights commentators that s12 serves no sensible purpose and there is some force in this point.48
Protection of journalistic sources Introduction
¶2.38 The Editors' Code of Practice frames the relationship between a journalist and his source as
giving rise to a "moral obligation" on the part of the journalist to protect confidential sources of information.49 The current legal position is that, under both international and domestic law, a journalist enjoys a "qualified right" to protect the confidentiality of a source. This right is guaranteed by Article 10 of the Convention and section 10 of the Contempt of Court Act 1981, but is susceptible to being overridden by specifically defined competing considerations.
¶2.39 The European and domestic jurisprudence on the protection of journalistic sources has
repeatedly emphasised the importance of the protection of sources as inherent in the freedom of the press and necessary to preserve the ability of the press to perform its role as a public watchdog. The classic statement of this position is the decision of the European Court in Goodwin v United Kingdom:50
"Without such protection, sources may be deterred from assisting the press in informing the public in 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 may be adversely affected".
¶2.40 In domestic law, the rationale for the protection of sources has long been established. In
¶1981, Lord Denning gave the crux of the justification in these words:51
1853"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."
¶Appendix 4 | Legal Materials
¶Legal right to protection of sources: domestic law 2.41 Prior to the enactment of s10 of the Contempt of Court Act 1981, the House of Lords in
British Steel Corporation v Granada Television Ltd noted that the relationship of confidence between a journalist and a source was such that it was in no different category to a doctor and a patient, or banker and customer and that in those cases the court has to decide in the particular circumstances whether the interest in preserving the confidence is outweighed by other interests to which the law attaches importance.52 The House of Lords reviewed the previous case law and confirmed that journalists had no absolute privilege so as to entitle them to refuse to disclose their sources of information. The Court adopted a test of necessity for overriding the confidence of a source and held that there is no immunity from disclosure of sources where disclosure is necessary in the interests of justice. Following this judgment, Parliament passed s10 of the Contempt of Court Act 1981, providing a qualified right for journalists to protect their sources.
¶2.42 Section 10 of the Contempt of Court Act 1981 provides that:
"No Court may require a person to disclose, nor is any person guilty of contempt of Court for refusing to disclose, the source of the information contained in that 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."
¶2.43 As was noted by the House of Lords in Re an Inquiry under the Company Securities (Insider
Dealing) Act 1985 the protection afforded by s10 was clearly intended primarily for the benefit of journalists. The Court held that:53
"the legislature in enacting section 10, manifestly intended that in court proceedings (1) journalists should ordinarily be entitled to refuse to disclose the source of any information contained in any publication (2) if they are to be deprived of that privilege the party seeking disclosure will have to satisfy the court that disclosure is necessary in the interests of justice or national security or for the prevention of disorder or crime."
¶2.44 The House of Lords held in Secretary of State for Defence v Guardian Newspapers Ltd that
s10 eliminated the old practice where judges exercised their discretion in determining whether sources should be disclosed and replaced judicial discretion with a rule of law which specifically defines the circumstances in which the confidentiality of journalists' sources could be revealed.54 Lord Diplock, discussing s10 generally, noted that the exceptions include no reference to the "public interest" generally.
¶2.45 The Court of Appeal in Financial Times v Interbrew CA noted that:55
1854"It will be observed that this provision creates no power or right of disclosure: what it does is assume the existence of such a power or right and place a strong inhibition on its exercise. It governs material received with a view to publication, whether published or not: see X Ltd v Morgan-Grampian Ltd [1991] 1 AC 1, 40, per Lord Bridge."