Reports that Matter

An Inquiry into the Culture, Practices and Ethics of the Press

APPENDICES

Section 76 of 140

APPENDICES

the ECtHR in Sunday Times v United Kingdom.71 That case established that the court has to be satisfied that the interference was necessary, having regard to the facts and circumstances prevailing in the specific case before it.72 Lord Woolf explained by reference to the speech of Lord Bridge in X Ltd v Morgan-Grampian (Publishers) Ltd, that the approach to be adopted in relation to s10 of the 1981 Act involved very much the same balancing exercise as is involved in applying Article 10 of the Convention.73

2.56 Following the judgment of the House of Lords the newspaper revealed only the name of the

journalist who provided the story, and not the source at the hospital who had provided the medical records. The hospital sought disclosure of the source from the named journalist who, following a trial, succeeded in persuading the Court that the source should not be disclosed.74 The hospital appealed to the Court of Appeal.75 The Court of Appeal held that the approach of the English courts to both s10 of the 1981 Act and Article 10 of the Convention should be the same.76 The question in a case to which s10 of the 1981 Act or Article 10 of the Convention applies is whether the claimant has shown that it is both necessary, in the sense of there being an overriding interest amounting to a pressing social need, and proportionate for the court to order the journalist to disclose the name of his source. The requirements of necessity and proportionality are separate but cover substantially the same area.77 Although the Court of Appeal was concerned that the Article 10 point should only have to be considered once (rather than, as transpired in this case, both at the behest of the newspaper and then the journalist), it upheld the decision of the trial judge.

world by virtue of international agreements, declarations and case law. The instruments generally adopt as the starting point that the identity of sources is not to be disclosed, although this may be outweighed by competing considerations.

2.58 The principle of protecting sources has been recognised by the United Nations since the

1950s. In 1952 the Sub-Commission on Freedom of Information and of the Press drafted a code of ethics which set out that:78

"… discretion should be observed concerning sources of information. Professional secrecy should be observed in matters revealed in confidence; and this privilege may always be invoked to the furthest limits of law".

2.59 The UN Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, in his report in 1997 noted that:79

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"the protection of sources assumes primary importance for journalists, as a lack of this guarantee may create obstacles to journalists' right to seek and receive information, as sources will no longer disclose information on matters of public interest. Any compulsion to reveal sources should therefore be limited to exceptional circumstances where a vital public or individual interest is at stake".

2.60 The UN Commission on Human Rights set out in its Annual Resolution in 2005 that it was

"stressing the need to ensure greater protection for all media professionals and for journalistic sources" and called for States to respect the right of protection of journalistic sources.80

2.61 The Council of Europe and the European Parliament have issued in the region of fifty

declarations and other instruments relating to freedom of expression and the media since 1949. These include the Resolution on the Confidentiality of Journalists' Sources by the European Parliament and amongst these the most significant is the recommendation made on 8 March 2000 relating to the protection of journalistic sources.81

2.62 The purpose of the recommendation was to reinforce and supplement the principles that

had been established by the judgment of the European Court in Goodwin v United Kingdom and to provide a basis for common European minimum standards concerning the right of journalists not to disclose their sources of information.82

practice and principles appended to the recommendation into domestic law. The principles set out in the recommendation are as follows:

"Principle 1 (Right of non-disclosure of journalists) Domestic law and practice in member states should provide for explicit and clear protection of the right of journalists not to disclose information identifying a source in accordance with Article 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms (the Convention) and the principles established herein, which are to be considered as minimum standards for the respect of this right.

Principle 2 (Right of non-disclosure of other persons) Other persons who, by their professional relations with journalists, acquire knowledge of information identifying a source through the collection, editorial processing or dissemination of this information, should equally be protected under the principles established herein.

Principle 3 (Limits to the right of non-disclosure) (a) The right of journalists not to disclose information identifying a source must not be subject to other restrictions than those mentioned in Article 10, paragraph 2 of the Convention. In determining whether a legitimate interest in a disclosure falling within the scope of Article 10, paragraph 2 of the Convention outweighs the public interest in not disclosing information identifying a source, competent authorities of member states shall pay particular regard to the importance of the right of non-disclosure and the pre-eminence given to it in the case-law

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