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.

1. The type of the court hearing the case: Juries are more likely to be swayed by what they hear. (Juries do criminal trials and defamation).
2. The circulation of the publication and its relation to the location of the course and the corresponding area. the risk will be less likely for example where a local Guildford Newspaper carries a report that a man charged is to be tried a ta different place had previous convictions… in other words, it will be unlikely to be read by the jury. However, the risk is greater where a publication is of greater prominence and reaches a mass audience.
3. Time delay to the trial. The bigger the delay, the more likely for the risk not to be substantial. AG v Independent Television News [1995] The Broadcast was nine months before trial, any effect would have faded by the time of the trial, but in AG v Morgan [1998] the effect could still be there due to the prominence given to the publication and the likely impact on the reader. It is also worth noting that the publication AT THE TIME OF TRIAL is very risky, AG v MGN ltd [2002], in this case D published an interview with the father of the victim of an assault who, said that the attack was racially motivated when the court told the jury that it was not.

1. Publishing D’s previous convictions, in criminal trials, previous convictions are deliberately kept from the jury so as to give the defendant a blank sheet.
2. Publishing details of criminal trials, (although ones in good faith might not be), but some details of stuff said in the absence of the jury could affect them.
3. Publishing D’s photo where the issue is identification.
4. Publishing details of D’s background, where the background facts have the effect of either blackening or laundering D, or suggesting a motive for his behaviour.

The law of defamation is a law the protects unjustified attacks on reputation. There is a constant battle between the desire of the society to be aware of events they are interested in and the need of the individual to be protected against the invasion of personal privacy and the publication of untrue or damaging remarks.

Defamation is a serious curb to media freedom in the UK as every stage of the publication or broadcasting process could be held liable. There is no requirement for the defendant to intend defamation.

There are several requirements for someone to be able to claim a successful claim in defamation:

1. A statement communicated to a third party (publication must be a third party other than D’s spouse.)

2. this statement must refer to the claimant. The claimant has to be alive. It is not a defence that C is not referred by name if he would be capable of being identified by the reasonable person. The words could be taken to refer to C if he’s mentioned by name even if D did not intend it. In the case of Hulton v Jones [1910] D was held liable when the name of a fictional character matched the name of a real person. If the statement defamed a class of people, C must be prove that he is identifiable individually within the group for him to be able to make an action. Case: Aiken and Others v Police Review Publishing Co Ltd. (Action failed). A legal person such as a Company can sue and be sued for defamation, but a local authority or a governmental dept cannot sue but can be sued.
3. this statement must be in the form of words that does one of the following:

1. Lower the claimant in the estimation of normal right-thinking people.
2. Expose C to hatred, contempt or ridicule.
3. Cause C to be shunned or avoided.

The jury should consider the natural and ordinary meaning to the ordinary, reasonable and fair minded-reader who is not unduly suspicious but nor is he unduly naive. He can and does read between the lines and should not select one bad meaning where non-defamatory meanings are available – reasonable reader test. Case: Hartt v Newspaper Publishing Plc. What is defamatory can change from time to time, eg. Calling someone a ‘German’ after WW was offensive case: Slazengers Ltd v Gibbs & Co [1916], calling someone gay is not defamatory because it is now widely accepted, unless of this would imply the dishonesty of C.

In the case of Berkoff v Burchill [1977], the statement that described the claimant as ugly was held to be defamatory was it exposed C to ridicule. But in the case of Normal v Future Publishing Ltd [1998], a statement that illustrated a stereotypical image of the claimant’s race was held to be humourous and not defamatory. (The comment was about a C black woman saying ‘Honey, I aint got no sideways’.)

It is important to note that a comment could be defamatory even when its true (But the defendant will have a defence), and it would not necessarily be defamatory just because it is not true.

Defamation is the law providing means of preventing unjustifiable attacks upon reputation and one of compensation for those that have been defamed. This is usually a civil law mater, but it could also bring prosecution under criminal libel.

The required elements of the initiation of a defamation claim is that the complainant must prove that a statement referred to him, that it was defamatory and that it was communicated to a 3rd party.

The reference must reasonable refer to C, this is an object test of strict liability, D’s state of mind does not matter, he does not even need to know about the existence of C. Case Hulton v Jones, wrote an article about a fictional character that came out to be a real person, that person sued and won. Newstead v Londond Express Newspapers, accused person of bigamy and there was another person with the same name, that person sued and won. However, there is an exception to the strict liability rule in the case of look-alike photos, can’t sue these for defamation.

A guilty statement could be untrue or could be something that upsets C, however, it has to be defamatory, this means that it has to either lower C in the estimation of right thinking members of the society, or that it exposes him to hatred, contempt or ridicule, makes him shunned or avoided, or one that claims the lack of qualification, knowledge, skill, capacity, judgment, or efficiency. A company may sue if the material is injurious to its trading reputation.

If D innocently defamed C, he can use s4 of the DA 1996 to make an offer of amends, offering C a compensation and apology. D must do this in writing and must make it clear that this is made in an offer of amends and must, he can do it anytime before issuing a defence and cannot use it in conjunction with any other defence. (It is a sole defence which admits guilt). The actual offer must include a compensation, an appropriate apology, must be published in an appropriate manner and must make a qualified or an unconditional offer.

If C and D cannot agree on some parts of terms of the Offer of Amends they could be taken to a single judge who can decide on disputed conditions. If D acts promptly and generously he may be awarded a discount by the judge!

If C rejects the OoA he can take legal action, but the onus will be on him to show that the statement was defamatory, that it referred to him intrinsically and that D acted maliciously. It would not be sufficient to show negligence, the minimum level of mens rea required is recklessness.

* What about the summary procedure and conditional fee agreements?