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¶2.66 The 2011 Recommendation provides that the confidentiality of journalists' sources must not
be compromised by the increasing possibilities provided by technological developments, for example the power of public authorities to control the use by journalists of mobile telecommunication and internet media and the interception of correspondence and surveillance of journalists. In addition, the right of journalists not to disclose their sources of information is a professional privilege intended to encourage sources to provide journalists with important information which they would not give without a commitment to confidentiality.
¶2.67 The seminal case of the European Court of Human Rights on journalistic sources is the case
of Goodwin v United Kingdom.86 An order had been made by the domestic court under s10 of the Contempt of Court Act 1981 which required a journalist to disclose the identity of a source that had provided details of a company's confidential corporate plan. The purpose of the order was to permit the company to bring proceedings against the source. The ECtHR considered whether this amounted to an unlawful interference with Article 10.
¶2.68 The ECtHR held that freedom of expression constitutes one of the essential foundations of
democratic society. In particular, if journalists are forced to disclose their sources then the role of the press in acting as a public watchdog could be seriously undermined, because of the chilling effect that such disclosure would have upon the free flow of information. Accordingly, an order to disclose sources cannot be compatible with Article 10 unless there is an overriding requirement in the public interest.87 As a matter of general principle, the necessity for any restriction on freedom of expression must be convincingly established and the restriction must be proportionate to the legitimate aim pursued.88 The Court stated that there must be a reasonable relationship of proportionality between the legitimate aim pursued by the disclosure order and the means deployed to achieve that aim.89
¶2.69 On the facts the ECtHR held that the order to disclose the source had to be viewed in light of
the fact that publication had been restrained already and whilst the company had a further legitimate interest in ascertaining the identity of the source to prevent further dissemination of confidential material and terminating the employment of the source, the interests of a democratic society in a free press outweighed these interests. Therefore the order for disclosure of a source was disproportionate in the circumstances.90
¶2.70 It is clear that the protection of journalists' sources in Article 10 extends not only to an
1861order made by the court that a source be disclosed, but also to searches and the seizure of documents held by journalists at their offices and homes. For example, in Ernst and others v Belgium the ECtHR considered whether searches and seizures by the judicial authorities at their newspaper's offices and their homes constituted a breach of their freedom of expression under Article 10 and a violation of their right to privacy under Article 8 of the European Convention.91 The ECtHR concluded that the searches and seizures violated the protection of journalistic sources guaranteed by the right to freedom of expression and the right to privacy. The Court considered that the searches and seizures, which were intended to gather information that could lead to the identification of persons who were leaking confidential information, came within the sphere of the protection of journalistic sources, an issue which called for the most careful scrutiny by the Court.
¶Appendix 4 | Legal Materials
¶2.71 More recently, consideration of the principles relevant to the extent of the right to protect
confidentiality of sources was set out by the ECtHR in Financial Times Ltd and Others v United Kingdom.92 The Financial Times and other UK newspapers complained that their Article 10 rights has been infringed by an order requiring them to disclose documents to a Belgian company which could lead to identification of journalistic sources at the origin of a leak to the press in relation to a takeover bid. The European Court upheld the newspapers' complaint, holding there was a violation of Article 10 and in that case, the balance was tipped in favour of the public interest in protecting journalistic sources. The Court held that although a disclosure order could serve the purpose of enabling the bringing of proceedings against a source, in order for it to be "necessary" under Article 10 to order disclosure it was not sufficient that the party seeking the order had merely shown that it would otherwise be unable to bring a claim or show a threatened legal wrong.93 Where leaked information subsequently published was alleged to be inaccurate, the duty of journalists to contribute to public debate by accurate reporting and the steps that had been taken by the journalist to verify the accuracy of the information was relevant to deciding whether the order for disclosure was justified, however the principle of protection of sources meant that that such matters could not be decisive.94 Where an unauthorised leak had occurred and the source had not been identified a general risk of future leaks would always be present, therefore the aim of preventing further leaks could only exceptionally justify an order requiring disclosure of a source.95 On the facts, the Court held that the company's interest in identifying and bringing proceedings against the journalist was insufficient to outweigh the public interest in the protection of journalistic sources and that there had therefore been a violation of Article 10.
¶2.72 Whilst each case will turn on its own facts, the following principles can be derived the case
law of the ECtHR: (1) The right to freedom of expression in Article 10 encompasses safeguards and guarantees to the press, and protection of journalistic sources is one of the basic conditions for press freedom. An order for disclosure of a source cannot be compatible with Article 10 unless it is justified by an overriding requirement in the public interest. (2) In accordance with the usual balancing exercising under the Convention, any restriction of Article 10 rights must pursue a legitimate aim, the necessity of any restriction on freedom of expression must be convincingly established and any restriction on the right must be proportionate to the legitimate aim pursued.
¶2.73 The following factors will be relevant to undertaking this exercise:
1862(1) Whether alternative means of discovering the identity of a leak of information had been pursued. For example in Roemen and Schmit v Luxembourg the Court considered that the fact that the authorities had searched the premises of journalists to discover the identity of the leak without searching the premises or interviewing individuals responsible for investigating the matter was a fact in concluding that balance between the competing interests, namely the protection of sources on the one hand and the prevention and punishment of offences on the other, had not been maintained. It accordingly found a violation of the right to freedom of expression.96 In Ernst and others v Belgium the European Court concluded that the searches and seizures of documents from journalists' homes and offices violated the protection of journalistic sources guaranteed by the right to freedom of expression. In reaching this conclusion the Court
APPENDICES
questioned whether other means could not have been employed to identify those responsible for the breaches of confidence and, in particular, took into consideration the fact that the police officers involved in the operation of the searches had very wide investigative powers.97 (2) The interest of an employer in identifying the source of a leak of confidential material in order to terminate an employee's employment is unlikely in itself to be sufficient to justify the disclosure of a source. It has been held that it is not enough to show that without disclosure the party seeking disclosure would be unable to bring a claim or assert a threatened legal wrong.98 Further, the aim of preventing future leaks would only exceptionally justify an order for disclosure.99 (3) Disclosure may be proportionate where a journalist holds information which may assist the prevention of a serious crime. For example in Nordisk Film & TV A/S v Denmark the European Court held that a court order requiring disclosure of research material which had been compiled whilst making a documentary on paedophilia was a proportionate interference with the journalist's freedom of expression, namely the prevention of crime in the case of serious child abuse.100 (4) It would be relevant whether a journalist had acted in good faith and in accordance with the ethics of journalism to provide accurate and reliable information.101 The steps taken to verify the accuracy of information would also be relevant but not decisive. (5) The conduct of the source would also be relevant but not a decisive factor.102
¶Conclusion 2.74 A journalist's right to protect the confidentiality of his or her sources is well recognised in
both domestic and European law. Successive decisions of the courts as well as international declarations and recommendations have emphasised the importance of the protection of sources in promoting a free press and exercise of the freedom of expression. However, such rights carry responsibilities and the case law has also made clear that the conduct of both the source and the journalist will be relevant to the balancing exercise undertaken in weighing up the purpose served by disclosure with the underlying right to confidentiality. The assessment of these competing aims is highly fact sensitive and the weight given to different factors will vary depending on the circumstances of each individual case.