Blue Chi’s

The court will weigh the public interest in maintaining the confidentiality of journalistic sources against the general interest of the administration of justice. Recent caselaw leans towards disclosure though. The Press Complaints Commission Code of Practice states that journalists have a moral obligation to protect confidential sources of information. There are two main methods at which the disclosure of journalist material is regulated, the Contempt of Court Act and the Police and Criminal Evidence Act 1984.

Contempt of Court Act
Section 10 of the contempt of court act 1981 offers protection to the media’s sources subject to 3 specific exceptions.

Section 10: No court may require a person to disclose, nor is any person guilty of contempt of court for refusing to disclose, the source of info contained in a publication for which he is responsible, unless it be established to the satisfaction of the court that disclosure is necessary (1) in the interest of justice, or (2) national security or (3) for the prevention of disorder or crime.

Person seeking the protection of section 10 must show that the balance of probabilities is such that the identity of his source will be revealed if he complies with the order being sought. It is not sufficient to show that disclosure is the easiest way of pinpointing the leak, the test is one of necessity and not of convenience or expediency, this does not mean that ALL other lines of enquiry must first be exhausted.

It will be considered whether or not the plaintiff has made any attempts to discover the source of a leak other that by applying to the court (Broadmoor Hospital v Hyde (1994))

A bare assertion of ‘necessity’ will not suffice, it must be proved by evidence on the balance of probabilities. The court will undertake a balancing exercise, weighting one public interest (maintaining the confidentiality of the J sources) against another (one of the three exception to s10).

Scope of s10. The section applies where the info is contained in a publication. This is defined to include any speech, writing, broadcast, cable programme, or other communication in whatsoever form, which is addressed to the public at large or any section of the public. This technically extends to protect any info communicated and received for the purpose of publication.

The Exceptions to Section 10
(1) The interest of justice: Guardian (1985), the expression justice was held not to be the opposite of ‘injustice’. The interests of justice demand that people should be able to exercise important legal rights and to protect themselves from serious wrongs, whether or not legal proceedings in a court of law will be necessary to attain these objectives.

Goodwin case, new journalist working at The Engineering received phone call about confidential information that could severely damage a company. The company got an injunction and then sought to have disclosure as well. In deciding whether or not the threshold of necessity has been reached, the judge must wight the importance of enabling the ends of justice be attained in the circumstances of the particular case against the importance of protecting the source.

This balancing exercise should take account of:

1. The degree of confidentiality attaching to the information
2. The seriousness of the consequences of any actual or further apprehended breach
3. The degree of true public interest in what might be disclosed in terms of the revelation of inequity

The HL held that another important consideration was the manner at which the source had obtained the information, if obtained illegally this would diminish the importance of protecting him, unless there was a clear public interest in publication.

In Goodwin, the court found no evidence of inequity or misconduct on the part of the claimant, the it was necessary for the source to be revealed so that the company could take steps to deal with the menace that he represented for its business activities, the balance came down in favour of disclosure. (What about ECHR, Article 10 breach, didn’t work?).

2. National Security
Secretary of State for Defence v Guardian Newspapers Ltd [1985]
Photocopy of a secret ministry of defence document on cruise missile which was supplied to the Guardian by a ‘mole’ and which was published. C sought to disclose the source of the articles and the return of the documents which had markings that would identify the source. The claimant argued that disclosure was necessary in the interest of national security and got it. HL said that expediency, however great, is not enough, and that section 10 requires actual necessity to be established. Necessity fulfilled because of the possibility that the mole might leak other, more serious, documents in the future.

3. Prevention of Crime
Warner’s case [1988], the prevention of crime was broadly interpreted in this case. It was not required to establish a particular identifiable crime which would be prevent if disclosure is necessary for the prevention of crime in general. This case involved insider dealings, and it was sufficient that there were definite grounds for expecting to find material of real importance to the party seeking disclosure. OR that non-disclosure was likely substantially to impede the inspectors in their inquiries.

X v Y [1988] Someone disclosed the names of AIDS patients and the hospital sought disclosure on grounds for preventing doctor corruption. The court said that this was too vague as there was not enough evidence that C had done everything to identify the leak themselves.

In extreme cases a J might not be compelled to reveal his sources even when it had been established that their identification is necessary for the prevention of crime when the crime is too trivial or when J’s life might be imperilled.

The leaked documents could be destroyed before the initiation of legal proceedings and this will not be contempt, but the owner would still have a civil claim for damages in respect of lost property.