Reports that Matter

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

ENGAGE

Section 63 of 67

ENGAGE

Hacked Off Epoch Times

Phil Hall Equality Now

Josh Halliday European Policy Forum

Sean Hamilton John Evans (HMRC)

Hansard Society Terry Evans

Tony Harcup F John Hardie Federation of Poles in Great Britain Harmless Sky John Ferriter Dave Hartnett Finnish Press Council Stefano Hatfield Bob Firth Louise Hayman Sue Firth Scott Henderson Francis Fitzgibbon QC Patrick Hennessy Dame Elizabeth Forgan Scott Hesketh Alison Fortescue Matthew Hibbert

1840

Stuart Higgins John Lyon Peter Hill

M Peter Hitchens

DCI John Macdonald Lord Hollick

Ian MacGregor Howard League for Penal Reform

Professor Kenneth MacKinnon Mark Hughes (BT)

Lisa MacLeod Mark Hughes (The Telegraph)

Make Justice Work John Humphries

David Mannion I Ian Marratt Inclusion London Peter McCall Index on Censorship Professor Eugene McLaughlin INQUEST Michael McManus Irish Press Council Media Regulation Round Table The Irish Traveller Movement MediaWise Trust Robert Sinclair Irvine Kip Meek

Professor Marie Messenger-Davies J

Migrant and Refugee Communities Forum Sarah Jellema

Andrew Miller Joint Enterprise: Not Guilty by Association (JENGbA) Mind and Rethink Mental Illness Sir Paul Jenkins Charles Moore Simon Jenkins Gareth Morgan Joint Council for the Welfare of Immigrants Neil Morrissey Carwyn Jones AM Vincent Moss

Mark Moylan K John Mulholland Jemima Khan Chris Mullin Peter Kirkham Laura Kuenssberg N

Suleman Nagdi L National Aids Trust (NAT) Billy Labrum National Association of Press Agencies Professor Rae Langton National Council for Training of Journalists Quentin Letts (NCTS) Dr David Levy Andrew Neil Michael Lidbury Netherlands Press Council Magnus Linklater Neuroimmune Alliance Liverpool John Moores University New Zealand Law Commission Tim Lord Newspaper Society Louise Lovely Jackie Newton Professor Tim Luckhurst

1841

O S OBJECT Samaritans Ofcom Robert Sanderson Craig Oliver Sara Sands Ombudsman Services Pia Sarma Organisation of News Ombudsman (ONO) Schillings Kevin O'Sullivan Science and Media Centre Patricia Owen Sir Stephen Sedley

Sense about Science P

David Seymour George Parker

Jonathan Shawcross (on behalf of Lloyds) Matthew Parris

Rohan Silva Robert Peston

Darren Singer Gillian Phillips

Society of Editors Professor Gavin Phillipson

South West Wales Media Andy Pickford

Mike Sparham Anne Pickles

Charlotte Stamper Press Ombudsman of Ireland

Ian Stewart Press Gazette

Support After Murder & Manslaughter (SAMM) Lance Price National Professionals against Child Abuse (PACA) Public Concern at Work T Stephen Purdew Catherine Taylor

Peter Taylor-Whiffen Q Telegraph Media Group Katharine Quarmby The-Latest.com R Andrew Thomas Rebecca Television Professor John Thompson The Refugee Council Simon Toms Nigel Regan Martin Townsend Reuters Institute for the Study of Journalism Trades Union Congress (TUC) John Ridding Trans Media Watch Justin Rigby Transparency International UK James Robinson Alexander Tribick Nick Robinson Simon Tse Royal College of Psychiatrists Barry Turner Reynolds Porter Chamberlain (RPC) U Runneymede Trust UK Drug Policy Commission Steve Rushton UK Press Card Agency (UKPCA) Sue Ryan Unitas Communications Ltd

1842

V Vijay Vaghela Keith Vaz MP Paul Vickers

W Adam Wagner Professor Jeremy Waldron Alan Walls Claire Ward Richard Watson Paul Waugh The Wellcome Trust James Welsh Andre White Doug Wills Wish Karl Wissgott Jan Woolf World Press Freedom Committee Julian Wright Arthur Wynn Davies

Y David Yelland Andrew Young Youth Media Agency

1843

1.2 The broad structure of the Annex is as follows:

  • Freedom of Speech and Article 10 – The importance of freedom of speech, Article 10 of the European Convention, section 12 of the Human Rights Act and the protection of jour- nalists' sources;
  • Civil Law – Breach of confidence, misuse of private information, protection from Harass- ment Act 1997 and defamation;
  • Regulatory Law – Legal framework relating to the Information Commissioner;
  • Criminal Law – Substantive law restraining the conduct of journalists and the content of publications;
  • Criminal Procedure – Police powers of investigation in relation to journalists.
  1. freedom of speech and Article 10

Recognition of the right to freedom of expression 2.1 The concept of freedom of speech has a long history, although the establishment of a legally enforceable right to free speech in the United Kingdom is a relatively recent development in the law.

2.2 Freedom of speech in a specific context was recognised in the Bill of Rights 1689 which referred to "freedom of speech in Parliament". Freedom of speech in broader terms was recognised in a number of international instruments in the twentieth century. At the first meeting of the General Assembly of the United Nations in London in 1946, freedom of expression was proclaimed as the touchstone of all human rights.1 Article 19 of the Universal Declaration of Human Rights, adopted by the General Assembly of the United Nations on 10 December

1948 states that:

UN General Assembly Resolution 59(1) of 14 December 1946

1844

"Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers."

2.3 The right to freedom of expression is also recognised in the International Covenant on Civil and Political Rights (ICCPR), which came into force in 1976.2 Article 19 of the ICCPR states that everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice. It is also observed that the exercise of the right to freedom to seek, receive and impart information carries with it special duties and responsibilities and may be subject to restrictions where these are provided by law and are necessary to respect the rights and reputation of others or the protection of national security, public order or public health or morals.

2.4 The European Convention for the Protection of Human Rights and Fundamental Freedoms (Cm. 8969), frequently referred to as the European Convention of Human Rights (The Convention) was signed on 4 November 1950. Freedom of expression was enshrined in Article 10. Prior to the Convention being incorporated into domestic law through the Human Rights Act 1998, the domestic courts had regard to the jurisprudence of the European Court of Human Rights (ECtHR) on freedom of expression and common law had recognised that freedom of expression had achieved the status as a constitutional right.3 Today, Article 10 of the Convention is incorporated into domestic law through the mechanism set out in the Human Rights Act 1998.

2.5 Freedom of expression has been recognised as one of the general rights protected under EU law.4 The right to free expression also forms part of the Charter of Fundamental Rights of the European Union in Article 11.5

2.6 The importance of freedom of expression is well established by both the ECtHR and the domestic courts.6 In R (Animal Defenders International) v Secretary of State for Culture, Media and Sport, Lord Bingham observed:7

"Freedom of thought and expression is an essential condition of an intellectually healthy society. The free communication of information, opinions and argument about the laws which a state should enact and the policies its government at all levels should pursue is an essential condition of truly democratic government. These are the values which article 10 exists to protect, and their importance gives it a central role in the Convention regime, protecting free speech in general and free political speech in particular."

1845

"… the existence of a free press … is an essential element in maintaining parliamentary democracy and the British way of life as we know it. But it is important to remember why the press occupies this crucial position. It is not because of any special wisdom, interest or status enjoyed by proprietors, editors or journalist. It is because the media are the eyes and ears of the general public. They act on behalf of the general public. Their right to know and their right to publish is neither more nor less than that of the general public."

2.8 Additionally, Lord Bingham observed in the case of R (Laporte) v Chief Constable of Gloucestershire, that:9

"… the proper functioning of a modern participatory democracy requires that the media be free, active, professional and inquiring. For this reason the courts, here and elsewhere, have recognised the cardinal importance of press freedom and the need for any restriction on that freedom to be proportionate and no more than necessary to promote the legitimate object of the restriction."

2.9 Further, the rationale for protecting the freedom of the press in contributing to debate in a democratic society has also been recognised. Lord Steyn observed in R v Secretary of State for the Home Department, Ex p Simms:10

"Freedom of expression is, of course, intrinsically important: it is valued for its own sake. But it is well recognised that it is also instrumentally important. It serves a number of broad objectives. First, it promotes the self-fulfilment of individuals in society. Secondly, in the famous words of Holmes J (echoing John Stuart Mill), 'the best test of truth is the power of the thought to get itself accepted in the competition of the market': Abrams v United States (1919)250 p13, para 49, ibid See, for instance, R(B Sky B and others) v Chelmsford Crown Court and Essex Police [2012] EWHC 1295 (Admin) p85, lines 8-14, Jon Chapman, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Transcript-of- Morning-Hearing-14-November-2011.pdf p2, para 50, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Exhibit-Annex-1-to-Chris-Atkins- supp..pdf p47, lines 9-12, Ed Stearns, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/lev030412am.pdf p4, Rupert Murdoch, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Exhibit-KRM-27.pdf p2, Rupert Murdoch, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/KRM17-Document-33.pdf p1, Stephen Abell, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/SA-B182.pdf p8-9, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Submission-by-Paul-Dacre1.pdf This was upheld on appeal by the Court of Appeal, who emphasised the fact that the individual who wished to disclose private information about another had been in, and only possessed this information because of a (more than transient) relationship of confidence US 616, 630, per Holmes J (dissenting). Thirdly, freedom of speech is the lifeblood of democracy. The free flow of information and ideas informs political debate. It is a safety valve: people are more ready to accept decisions that go against them if they can in principle seek to influence them. It acts as a brake on the abuse of power by public officials. It facilitates the exposure of errors in the governance and administration of justice of the country."

Article 10 of the Convention 2.10 Article 10 of the Convention provides:

"1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises. 2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of

1846

national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary."

2.11 Article 10(1) encompasses a number of freedoms, including freedom of expression, the right to hold and impart opinions and ideas and the right to receive information and ideas. The freedom to receive and the freedom to impart information are two independent rights and not merely corollaries of each other.11 These rights belong to everyone in society and are not simply rights of the press, although freedom of the press and other news media has consistently been recognised in case law as protected by Article 10. Freedom of expression is not limited to written or spoken word but extends to print, radio, television broadcasting, film and artistic works. The European Court of Human Rights has recently confirmed that it is incumbent on the press to impart information and ideas on political issues and on other subjects of public interest, emphasising that not only does the press have the task of imparting such information and ideas: the public also has a right to receive them.12

2.12 Article 10 protects not only the substance of ideas and information, but also the form in which they are conveyed.13 Unlike the press, the broadcast media are subject, by the express terms of Article 10(1), to licensing provisions. The ECtHR has recognised in the context of audiovisual media the importance of pluralism as an aspect of Article 10, noting that "there can be no democracy without pluralism. Democracy thrives on freedom of expression."14

2.13 The State has not only a negative obligation to ensure that these rights are not infringed unless an infringement is necessary in a democratic society, but in some circumstances may have a positive obligation to ensure that the rights contained in Article 10 are safeguarded.15 In deciding whether a positive obligation to safeguard Article 10 exists, regard must be had to the kind of expression rights at stake; their capability to contribute to public debate; the nature and scope of restrictions on expression rights; the ability of alternative venues for expression; and the weight of countervailing rights of others or the public.16

2.14 The language of Article 10 recognises that freedom of expression carries with it duties and responsibilities. Some forms of speech have been denied protection under the Convention; for example racist literature and expressions of political support for terrorism.17 The ECtHR in Otto Preminger Institut emphasised the duty on those who exercise freedom of expression to avoid expression which does not contribute to public debate and is gratuitously offensive to others.18

1847

2.15 Article 10 expressly acknowledges that freedom of expression may be overridden where necessary to protect legitimate interests. Any restriction on free speech must pass three distinct tests: (a) the restriction must be prescribed by law, (b) the restriction must further a legitimate aim, and (c) the interference must be shown to be necessary and proportionate in a democratic society.19 Lord Steyn explained this approach in Reynolds v Times Newspapers:20 http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Key-Questions-Module-3.pdf p3, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Witness-Statement-of-Dr-Neil-Manson.pdf ibid http://articles.latimes.com/2006/jul/28/business/fi-fox28 Section 2 of the BBC Editorial Guidelines, http://www.bbc.co.uk/editorialguidelines/page/guidelines-using- roles-responsibilities; p4, paras 3.1-3.2, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness- Statement-of-Robert-Peston.pdf; p3, para 3.1, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/ Witness-Statement-of-Nicholas-Robinson.pdf p6, para 12, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/DCMS-submission_Narrative-on- media-ownership.pdf Great Britain, Royal Commission on the Press 1961-1962: Report, p101 http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Exhibit-SA-H213.pdf Information Commissioner's Office, What Price Privacy?, p21, para 5.27 p12, para 16, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Witness-Statement-of-DS-Philip- Williams.pdf; p8 para 16, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Witness-Statement-of-DCS- Keith-Surtees.pdf On 20 November 2012 five individuals were charged with two conspiracies relating to the receipt and authorisation of payments to public officials pp22-23, lines 9-7, Charlotte Church, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Transcript-of- Afternoon-Hearing-28-November-20111.pdf Various articles and dates p4, para 9, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Witness-Statement-of-Derek-Webb.pdf p13, lines 12-19, Stuart Hoare, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcript-of- Morning-Hearing-19-December-2011.pdf p19, lines 17-22, Gerry McCann, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Transcript-of- Afternoon-Hearing-23-November-2011.pdf Murray v Big Pictures (UK) Ltd [2008] EWCA Civ 446 p51, lines 1-15, Thomas Mockridge, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcript-of- Morning-Hearing-17-January-2012.pdf; p7, para 19, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/ Witness-Statement-of-Dawn-Neesom.pdf; p10, para 42, http://www.levesoninquiry.org.uk/wp-content/ uploads/2012/01/Witness-Statement-of-Dominic-Mohan.pdf; p6, para 43, http://www.levesoninquiry.org.uk/wp- content/uploads/2011/12/Witness-Statement-of-Colin-Myler1.pdf; p9, para 33 http://www.levesoninquiry.org.uk/wp- content/uploads/2012/01/Witness-Statement-of-John-Witherow.pdf p11, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-Sara-Cheesley.pdf p3, para 5, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Witness-Statement-of-Jacqueline- Hames.pdf p11, para 43, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-John-Twomey. pdf http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/MPS-4-HMIC-without-fear-or-favour.pdf, p5 http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Order-of-2-December-2011.pdf Following an application, I issued a further ruling: http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Ruling-In- Relation-to-Operation-Motorman-Evidence-11-June-20123.pdf p28, para 6.8, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Exhibit-1.pdf pp29-30, lines 21-7, Philip Coppel, ibid p93, lines 14-15, Richard Thomas, ibid p11, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Witness-statement-of-Andrew-Neil.pdf p82, lines 15-16, Tony Blair, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-of-Morning- Hearing-28-May-2012.pdf p47, lines 14-23, David Cameron, ibid p5, Rupert Murdoch, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Exhibit-KRM-16.pdf p32, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Exhibit-VC1-1-to-Witness-Statement-of-Vince- Cable-MP.pdf p52, lines 16-22, Alex Salmond, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Transcript-of- Afternoon-Hearing-13-June-2012.pdf pp22-23, lines 10-3, ibid p25, para 5.28, ibid Part E [2012] EWCA Civ 1039; http://www.bailii.org/ew/cases/EWCA/Civ/2012/1039.html p28, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Submission-by-Trans-Media-Watch.pdf pp101-102, lines 7-9, Dr Colette Bowe and Ed Richards, http://www.levesoninquiry.org.uk/wp-content/ uploads/2012/07/Transcript-of-Morning-Hearing-12-July-2012.pdf see Figure 1 Senior Lecturer in the Department of Media & Communications, Goldsmiths, University of London K pp44-46, lines 22-11, Sir Charles Gray, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Transcript- of-Afternoon-Hearing-12-July-2012.pdf pp56-57, lines 24-4, Professor John Horgan, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/ Transcript-of-Morning-Hearing-13-July-20121.pdf p42, lines 4-8, Viscount Rothermere, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-of- Morning-Hearing-10-May-2012.pdf Part K, Chapter 7, para 4.36 1805 L [2001] 2 AC 127

"The starting point is now the right of freedom of expression, a right based on a constitutional or higher legal order foundation. Exceptions to freedom of expression must be justified as being necessary in a democracy. In other words, freedom of expression is the rule and the regulation of speech is the exception requiring justification. The existence and width of any exception can only be justified if it is underpinned by a pressing social need. These are fundamental principles governing the balance to be struck between freedom of expression and defamation."

2.16 Legitimate grounds for interfering with freedom of expression are set out in Article 10(2). The court will require evidence to justify any interference with freedom of expression and not simply mere assertion.21 The ECtHR has emphasised that there is little scope under Article 10(2) of the Convention for restrictions on the press in relation to political speech or in relation to debate on matters of public interest and the court will require the strongest reasons to justify impediments to the exercise of such speech.22 However, in the context of other restrictions imposed by Article 10(2), for example the protection of health or morals, cases have recognised that states enjoy a wide margin of appreciation as to appropriate restrictions on freedom of expression.

2.17 The legitimate aim of "protection of the reputation and rights of others" set out in Article 10(2) permits a wide range of interests to be invoked as a justification for imposing restrictions on freedom of expression. The interests most commonly invoked are the right to reputation and the protection of privacy (which is often referred to as the tort of misuse of private information in domestic law).23 However, the rights and interests of others which may justify restrictions on the freedom of speech are broader than reputation. For example, courts have recognised the need to protect the religious rights of others by restricting offensive material, to protect intellectual property rights, to protect a defendant's right to a fair trial, and to protect confidential information held subject to a duty of confidence.24

1848

2.18 Cases have drawn a distinction between reporting facts capable of contributing to a debate of general public interest in a democratic society, and making tawdry allegations about an individual's private life.25 In respect of the former, the pre-eminent role of the press in a democracy and its duty to act as a "public watchdog" are important considerations in favour of a narrow construction of any limitations on freedom of expression. However, different considerations apply to press reports concentrating on sensational and lurid news, intended to titillate and entertain, which are aimed at satisfying the curiosity of a particular readership regarding aspects of a person's strictly private life.26 Such reporting does not attract the robust protection of Article 10 afforded to the press. As a consequence, in such cases, freedom of expression requires a more narrow interpretation.27

Relevance of responsible journalism and ethical journalism in the context of Article 10 2.19 The ECtHR has repeatedly held that it is not for the courts to substitute their own views for those of the press as to what technique of reporting should be adopted by journalists.28 However, the ECtHR has on number of occasions recognised that responsible journalism and compliance with the ethics of journalists will be a factor, and in some cases, a highly significant factor, in determining whether an interference with the right to freedom of expression is justified and proportionate.

2.20 The ECtHR held in Flux (No 6) v Moldova that:29

"… under the terms of paragraph 2 of Article 10, the exercise of freedom of expression carries with it "duties and responsibilities" which also apply to the press… the Court will examine whether the journalist who wrote the impugned article acted in good faith and in accordance with the ethics of the profession of journalist".

2.21 The ECtHR has also held that:30

"… the safeguard afforded by article 10 to journalists in relation to reporting on issues of general interest is subject to the proviso that they are acting in good faith and on an accurate factual basis and provide "reliable and precise" information in accordance with the ethics of journalism."

2.22 The conduct of a journalist cuts two ways. If a journalist has acted responsibly, in good faith, and in accordance with the ethics of journalism, these factors are likely to support an argument that freedom of expression should prevail over competing interests. There are a number of cases in which the ECtHR has referred to the fact a journalist has acted in conformity with professional ethics as part of the consideration whether there is a legitimate and proportionate interference with Article 10.31 On the other hand, in cases where journalists have not acted with responsibility or have disregarded the ethics of the profession, this will support an argument that the interference with the freedom of expression is justified. For example, the case of Prager and Obserschlick v Austria concerned a journalist who had accused a judge of being biased and of having an arrogant and bullying attitude in the performance of his duties. The Court addressed the behaviour of the journalist and took the view that he could not invoke either good faith or compliance with the ethics of journalism, on the basis that the research that he had undertaken did not appear adequate to substantiate such serious allegations, the court noting that:32

1849

"… [he] had not attended a single trial before Judge J.. he had not given the judge any opportunity to comment on the accusations levelled against him".

2.23 The conclusion as to the journalist's conduct was of pivotal importance in the Court's overall determination. This case also illustrates that the adjudication by the Court of the proper standards to be expected of journalists may lead to different views, which can be seen in the dissenting opinions which took the view that the conduct of the journalist in this case could not per se be held to fall short of the standard of proper journalistic care.

2.24 In the case of Stoll v Switzerland the Court explained that the ethics of journalism required a distinction to be drawn between the manner in which the applicant obtained the information and the form of the impugned articles.33 The Court undertook a detailed analysis of the manner in which the journalist had obtained a report and considered the extent to which he was responsible for leaking the document or whether he had acted illegally. The Court also undertook a comprehensive analysis of the articles themselves, noting that the question whether the form of the articles published were in accordance with journalistic ethics carries weight, and concluded that there were a number of shortcoming in the articles in respect of the content, vocabulary, and editing of the article, including sensationalist style of headings, inaccuracies in the articles and prominence of the articles within the newspaper. The Court therefore agreed with the opinion of the Swiss Press Council that the articles were in breach of the declaration on the rights and responsibilities of journalists adopted by the Swiss Press Council. The Court concluded that the content of the articles and the fact they were likely to mislead detracted from their contribution to the public debate that is protected by Article 10.

2.25 In Flux (No 6) v Moldova it was held that the Court will examine whether the journalist who wrote the impugned article acted in good faith and in accordance with the ethics of the profession of journalism.34 In the Court's view, this depended in particular on the manner in which the article was written and the extent to which the applicant newspaper could reasonably regard its sources as reliable with respect to the allegations in question. The latter issue must be determined in light of the situation as it presented itself to the journalist at the material time, rather than with the benefit of hindsight.35 The Court considered that disregard of journalistic ethics may undermine the rights of others guaranteed by the Convention, holding that "the applicant newspaper acted in flagrant disregard of the duties of responsible journalism and thus undermined the Convention rights of others"36. An assessment of the ethics of journalism appeared to be clearly embedded in the Court's analysis, concluding that:37

1850

"… in a world in which the individual is confronted with vast quantities of information circulated via traditional and electronic media and involving an ever-growing number of players, monitoring compliance with journalistic ethics takes on added importance".

2.26 Dissenting judgments in the case expressed the view that the decision of the majority had undermined freedom of expression and that the chilling effect of sanctions against press freedom had materialised through the decision of the Court.38 2.27 In short, the current case law underlines the importance of considering the conduct of journalists and their compliance with the ethics of journalism in assessing whether any interference with freedom of expression is justified.

Section 12 of the Human Rights Act 1998 2.28 Section 12 of the Human Rights Act 1998 (HRA) is predominantly a procedural provision dealing with the circumstances where the High Court is considering whether to grant any relief, typically an injunction restraining publication, which might bear on the right of freedom of expression in Article 10. 2.29 Section 12, as enacted, was introduced into the Bill by the Government during the committee stage in the House of Commons as a result of support for such a clause being expressed by Lord Wakeham, Chairman of the Press Complaints Commission, and a number of newspaper groups, due to concern that the proposed legislation might otherwise impede freedom of expression by protecting privacy and imposing prior restraint on newspapers. During the second reading debate in the House of Commons, the Home Secretary, Jack Straw MP, announced that an amendment would be introduced into the Bill to protect press freedom in a manner which was consistent with the Convention.39 2.30 The purpose of section 12 was analysed by Lord Nicholls in Cream Holdings Limited v Banerjee in the following terms:40

"When the Human Rights Bill was under consideration by Parliament concern was expressed at the adverse impact the Bill might have on the freedom of the press. Article 8 of the European Convention, guaranteeing the right to respect for private life, was among the Convention rights to which the legislation would give effect. The concern was that, applying the conventional American Cyanamid approach, orders imposing prior restraint on newspapers might readily be granted by the courts to preserve the status quo until trial whenever applicants claimed that a threatened publication would infringe their rights under article 8. Section 12(3) was enacted to allay these fears. Its principal purpose was to buttress the protection afforded to freedom of speech at the interlocutory stage. It sought to do so by setting a higher threshold for the grant of interlocutory injunctions against the media than the American Cyanamid guideline of a "serious question to be tried" or a "real prospect" of success at the trial."

2.31 Section 12 applies where the court is considering whether to grant any relief which, if granted, might affect the exercise of the Convention right to freedom of expression.41 This section provides that no such relief is to be granted so as to restrain publication before trial unless the court is satisfied that the applicant is likely to establish that publication should not be allowed.42

1851

2.32 The meaning of "likely" was analysed by Cream Holdings Limited v Banerjee (supra) by Lord Nicholls who concluded that the effect of s12(3) is that the court is not to make an interim restraint order unless satisfied the applicant's prospects of success at the trial are sufficiently favourable to justify such an order being made in the particular circumstances of the case.43 As to what degree of likelihood makes the prospects of success sufficiently favourable, Lord Nicholls explained that:44

"the general approach should be that courts will be exceedingly slow to make interim restraint orders where the applicant has not satisfied the court he will probably ("more likely than not") succeed at the trial … but there will be cases where it is necessary for a court to depart from this general approach and a lesser degree of likelihood will suffice as a prerequisite. Circumstances where this may be so include those mentioned above: where the potential adverse consequences of disclosure are particularly grave, or where a short-lived injunction is needed to enable the court to hear and give proper consideration to an application for interim relief pending the trial or any relevant appeal".

2.33 The significance of s12(3) is that this sets a higher bar than the general law in relation to granting an interim injunction. The courts have clarified that there is no conflict between s12(3) and the Convention because s12(3) does not seek to give a priority to one Convention right over another. It is simply dealing with the interlocutory stage of proceedings and with how the court is to approach matters at that stage in advance of any ultimate balance being struck between rights which may be in conflict.45

2.34 Section 12(4) provides that the court must have particular regard to the importance of the Convention right to freedom of expression and, in particular where the proceedings relate to material which the respondent claims, or which appears to the court, to be journalistic, literary or artistic material the court must have regard to the extent to which the material has, or is about to become available to the public, or it is, or would be, in the public interest for the material to be published and any relevant privacy code.

2.35 The courts have rejected the argument that s12(4) has the effect that extra weight should be given to freedom of expression. In Ashdown v Telegraph Group Ltd, Lord Phillips MR rejected the argument that "must have particular regard to" means that the Court should place extra weight on the matters specified, noting that s12 does no more than underline the need to have regard to contexts in which the ECtHR has given particular weight to freedom of expression, while at the same time drawing attention to considerations which may none the less justify restricting that right.46 Section 12(4) does not require the court to treat freedom of speech as paramount.47

2.36 Section 12(4)(b) requires that the Court pay particular regard to any relevant privacy code when considering proceedings which relate to journalistic material. Therefore, if a newspaper has breached one of the provisions of the PCC Code, this is a factor which the Court can take 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.

1852

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

"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."

1853

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

"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."

1854

2.46 The Court of Appeal also clarified that s10 applies to material received with a view to publication, whether published or not.56 2.47 Section 10 operates by giving a journalist a prima facie right to refuse to disclose a source, and no order can be made to this effect unless it can be established that disclosure of the source is necessary in the interests of justice or national security or for the prevention of disorder or crime.57 Even if it is shown that one of the exceptions is made out, for example that disclosure is necessary for the protection of national security, the court retains its discretion to decline to order the source. However, it is likely to be rare that the Court would decline to order disclosure in circumstances where the exception was made out, and would probably be limited to a situation where a journalist would be put at risk.58 2.48 In X Ltd v Morgan-Grampian (Publishers) Ltd Lord Bridge gave guidance on the general approach to be adopted to s10, noted that:59

"the judge's task will always be to weigh in the scales the importance of enabling the ends of justice to be attained in the circumstances of a particular case on the one hand against the importance of protecting the sources on the other hand. In this balancing exercise it is only if the judge is satisfied that disclosure in the interests of justice is of such preponderating importance as to override the statutory privilege against disclosure that the threshold of necessity will be reached."

Interpretation of the exceptions set out in section 10 2.49 In relation to the phrase "necessary for the prevention of crime" it has been held that "necessary", although stronger than "useful or expedient", is less strong than "indispensable".60 "

Prevention of crime" is not restricted to a specific future crime, but means the deterrence and control of crime generally so that crimes allegedly already committed might come within the exception.61 2.50 "Necessary in the interests of justice" was initially given a restricted meaning in Secretary of State for Defence v Guardian Newspapers where Lord Diplock limited the phrase to the technical interests of the administration of justice.62 Lord Bridge adopted a broader approach in X v Morgan Grampian, finding that the phrase is wide enough to include the exercise of legal rights and self-protection from legal wrongs, whether or not by court action.63 He held that the "interests of justice" were not confined to technical sense of the administration of justice in the course of legal proceedings in a court of law. The sense in which it is used in section 10 is such that persons should be entitled to exercise important legal rights and to protect themselves from serious legal wrongs whether or not they result in legal proceedings. The House of Lords in Ashworth Hospital Authority v MGN Ltd confirmed that the definition of "interests of justice" in s10 was wide enough to include cases where the injured party sought some form of lawful redress other than litigation, thus preferring the approach of Lord Bridge of Harwich in X Ltd v Morgan- Grampian (Publishers) Ltd (see above) to Lord Diplock in Secretary of State for Defence v Guardian Newspapers Ltd, [1985] AC 339.64

1855

2.51 The prevention of crime and national security are not the only good reasons for limiting the public interest in the confidentiality of sources: the interests of justice exception allows for a more detailed evaluation including the importance of the case for the claimant, the public interest in the information from the source, and the method by which the source obtained the material. "Necessary" has been interpreted to mean "really needed".65

2.52 In Ashworth Hospital Authority v MGN Ltd the House of Lords identified the following matters as relevant to the question of necessity: i) as a matter of principle the necessity for disclosure must be convincingly established, ii) limitations on the confidentiality of journalistic sources call for the most careful scrutiny by the Court, iii) the disclosure must be in order to meet a pressing social need, iv) the disclosure should be proportionate to the legitimate aim which is being pursued.66

2.53 An example of the approach of the Court to an order requiring disclosure of a source in the context of enquiries made by a regulatory body is the judgment of the House of Lords in In re An Inquiry under the Company Securities (Insider Dealing) Act 1985.67 In this case the House of Lords considered whether a journalist was entitled to immunity from disclosing his source of information contained in a publication in the context of an inquiry by inspectors under section 177 of the Financial Services Act 1986 into the leak of price-sensitive information. The journalist refused to answer questions in the course of the inquiry which might lead to the identification of his source and argued he had a reasonable excuse for refusing to answer questions on the basis that he was conferred with immunity by s10 of the Contempt of Court Act.

2.54 The House of Lords held that the effect of s10 is to recognise and establish that in the interests of a free and effective press it is in the public interest that a journalist should be entitled to protect their sources unless some other overriding public interest requires them to reveal it.68 It was in the public interest that a journalist should be entitled to protect their source of information unless one of the other matters of public interest referred to required it to be revealed. It was for the party seeking disclosure, in this case the inspectors, to satisfy the court that identification of sources was necessary for the prevention of crime. The House of Lords held that "necessary" could not be precisely defined, but the nearest paraphrase was "really needed" and that "prevention of crime" was not restricted to the prevention of particular crimes but was used in the broadest general sense of deterrence and containment.69 On the facts the inspectors had satisfied the Court that it was of real importance for the purposes of their inquiry that they should know what the journalist's sources of information had been.

2.55 The facts of Ashworth Hospital Authority are instructive. The House of Lords considered an appeal by MGN Ltd against an order made by the High Court requiring it to identify who had provided it with the medical records of Ian Brady, a notorious convicted murderer detained in a secure hospital, parts of which had appeared in an article in their newspaper. The Court noted that both s10 and Article 10 have a common purpose in seeking to enhance the freedom of the press by protecting journalistic sources.70 It concluded that the approach set out by the ECtHR can be applied equally to s10 given that Article 10 is part of domestic law and that the application of s10 should follow the judgment on Article 10 in the decision of 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

1856

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.

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

1857

"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

"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

1858

of the European Court of Human Rights, and may only order a disclosure if, subject to paragraph b, there exists an overriding requirement in the public interest and if circumstances are of a sufficiently vital and serious nature. (b) The disclosure of information identifying a source should not be deemed necessary unless it can be convincingly established that: i. reasonable alternative measures to the disclosure do not exist or have been exhausted by the persons or public authorities that seek the disclosure, and ii. the legitimate interest in the disclosure clearly outweighs the public interest in the non-disclosure, bearing in mind that: • an overriding requirement of the need for disclosure is proved, • the circumstances are of a sufficiently vital and serious nature, • the necessity of the disclosure is identified as responding to a pressing social need, and • member states enjoy a certain margin of appreciation in assessing this need, but this margin goes hand in hand with the supervision by the European Court of Human Rights. (c) The above requirements should be applied at all stages of any proceedings where the right of non-disclosure might be invoked. Principle 4 (Alternative evidence to journalists' sources) In legal proceedings against a journalist on grounds of an alleged infringement of the honour or reputation of a person, authorities should consider, for the purpose of establishing the truth or otherwise of the allegation, all evidence which is available to them under national procedural law and may not require for that purpose the disclosure of information identifying a source by the journalist. Principle 5 (Conditions concerning disclosures) (a) The motion or request for initiating any action by competent authorities aimed at the disclosure of information identifying a source should only be introduced by persons or public authorities that have a direct legitimate interest in the disclosure. (b) Journalists should be informed by the competent authorities of their right not to disclose information identifying a source as well as of the limits of this right before a disclosure is requested. (c) Sanctions against journalists for not disclosing information identifying a source should only be imposed by judicial authorities during court proceedings which allow for a hearing of the journalists concerned in accordance with Article 6 of the Convention. (d) Journalists should have the right to have the imposition of a sanction for not disclosing their information identifying a source reviewed by another judicial authority. (e) Where journalists respond to a request or order to disclose information identifying a source, the competent authorities should consider applying measures to limit the extent of a disclosure, for example by excluding the

1859

public from the disclosure with due respect to Article 6 of the Convention, where relevant, and by themselves respecting the confidentiality of such a disclosure. Principle 6 (Interception of communication, surveillance and judicial search and seizure) (a) The following measures should not be applied if their purpose is to circumvent the right of journalists, under the terms of these principles, not to disclose information identifying a source: i. interception orders or actions concerning communication or correspondence of journalists or their employers, ii. surveillance orders or actions concerning journalists, their contacts or their employers, or iii. search or seizure orders or actions concerning the private or business premises, belongings or correspondence of journalists or their employers or personal data related to their professional work. (b) Where information identifying a source has been properly obtained by police or judicial authorities by any of the above actions, although this might not have been the purpose of these actions, measures should be taken to prevent the subsequent use of this information as evidence before courts, unless the disclosure would be justified under Principle 3. Principle 7 (Protection against self-incrimination) The principles established herein shall not in any way limit national laws on the protection against self-incrimination in criminal proceedings, and journalists should, as far as such laws apply, enjoy such protection with regard to the disclosure of information identifying a source."

2.64 The Recommendation takes its cue from Article 10 of the Convention, namely that the right of journalists to protect their sources is not an absolute right, but may be overridden if circumstances of a sufficiently serious nature are identified.83 The Recommendation follows the conventional balancing exercise under the Convention in respect of qualified rights: that interference with a right must pursue a legitimate aim and the infringement of the right must be proportionate. 2.65 The Parliamentary Assembly Recommendation 1950 (2011) entitled "The protection of journalistic sources" reaffirmed that the protection of journalists' sources of information is a basic condition for both the full exercise of journalistic work and the right of the public to be informed on matters of public concern.84 The Parliamentary Assembly noted with concern the large number of cases in which public authorities in Europe have forced or attempted to force journalists to disclose their sources, despite the clear standards set by the European Court and the Committee of Ministers.85

1860

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 order 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.

1861

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: (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

1862

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.