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“The protection of a journalist’s source is of such vital importance for the exercise of his right to freedom of expression that it must, as a matter of course, never be allowed to be infringed upon, save perhaps in very exceptional circumstances” (Judge de Meyer, Goodwin v. UK, 1996).
Consider whether section 10 of the Contempt of Court Act 1981, as judicially interpreted and applied, reflects the above position.
This paper will look to effectively consider whether section 10 of the Contempt of Court Act 1981, as judicially interpreted and applied, reflects Justice Meyer’s view in Goodwin v. United Kingdom. Therefore, it will be necessary to outline what is meant by the ‘freedom of expression’ and section 10 of the Contempt of Court Act (‘CCA’) 1981, in the context of journalists and the protection of their sources, so as to determine their nature and scope.
Then, following on this, it will be necessary to consider how the two interrelate and the problems with looking to recognise this relationship, before looking specifically at the decision in Goodwin v. United Kingdom, how the law has since developed, and how such matters have been dealt with in another jurisdiction, so as to effetively conclude upon this issue.
Therefore, to begin with it is important to recognise the fact that, for any journalist, protecting the confidentiality of their sources is an integral part of their work because of the fact that they would be unable to carry out their jobs effectively without the trust of primary sources on the scene of some of the biggest news stories Accordingly, throughout the past two decades English courts have stressed the growing importance of freedom of expression and have become more willing to countenance the citation of authority from other jurisdictions Therefore, in some cases, English courts have even gone so far as to incorporate a statement of principle from First Amendment doctrine, as it is also widely understood the European human rights system generally supports journalists’ right to refuse to reveal their sources. This is effectively illustrated by the nature and scope of Article 10 of the European Convention on Human Rights (‘ECHR’) 1950 that was effectively codified into our domestic legal system by the enactment of the Human Rights Act 1998.
Accordingly, in keeping with their membership of the European Community as a whole UK domestic law also offers some form of protection for journalists and their sources before a court of law under section 10 of the Contempt of Court Act (‘CCA’) 1981.
However, whilst section 10 of the CCA 1981 codifies the idea that there is not a court in the country that can require someone to disclose the source of information that is contained in the publication that they are responsible for, and nor are they guilty for refusing to do so, unless it is effectively established that disclosure is necessary in the view of the courts in the given circumstances, it is important to recognise the fact that this provision may not be keeping with Justice Meyer’s aforementioned view.
Moreover, as several journalists have recognised, journalists can only appeal against an order for disclosure if they are personally party to litigation and, where this is allied with section 14 of the same Act it would seem that domestic law in this area is particularly stringent.
However, it must be stressed that neither the ECHR 1950 nor domestic law confers a right upon anyone to ‘broadcast time’, since Article 10 simply confers a right not to have access to public media denied on discriminatory, arbitrary, or unreasonable grounds.
This view is effectively illustrated by the Privy Council decision in Benjamin v. Minister of Information & Broadcasting where the court quashed the respondent’s decision to suspend Mr Benjamin’s phone-in programme on Anguillan radio. Therefore, the Privy Council held that although Mr Benjamin had no right to broadcast, he did have the right not to have his access denied on arbitrary and capricious grounds.
As a result, it must also be recognised that, according to the courts in this country, the ‘necessity’ for any restriction on freedom of expression must be convincingly established, according to the decision in Sunday Times v. United Kingdom. This is because the court in this case was “faced … with a principle of freedom of expression”, but “it is not sufficient that the interference involved belongs to that class of the exceptions listed in article 10(2) … neither is it sufficient … because its subject-matter fell within a particular category or was caught by a legal rule formulated in general or absolute terms”.
Moreover, their has been some judicial discourse regarding what is meant by the limited circumstances proscribed in section 10 of the CCA 1981, where the courts may find journalists in contempt for looking to protect their sources, and as to whether this is a fair reflection of Article 10 of the ECHR 1950 by comparing the views of Lord Justice Schiemann in Camelot Group plc v. Centaur Communications Limited and Lord Justice Sedley in Financial Times Ltd v. Interbrew SA.
This is effectively illustrated by the decision in Secretary of State for Defence v. Guardian Newspapers Ltd where Lord Diplock said, “exceptions include no reference to ‘the public interest’ generally and … the expression ‘justice’ … is … in the technical sense of the administration of justice in the course of legal proceedings”. Therefore, ‘The Guardian’had to reveal the identity of Sarah Tisdall, a government employee who photocopied a document showing American cruise missiles due to arrive in England, who was jailed as a result.
However, despite the fact that it was stated in the decision of Ashworth Security Hospital v. MGN Ltd that “there can be no doubt now that both section 10 and article 10 … enhance the freedom of the press by protecting journalistic sources”, it is perhaps little wonder the European Court of Human Rights (‘ECtHR’) has ruled that a journalist has the right to protect confidential sources except in these narrowly-defined circumstances. This is because, under Article 10 of the European Convention on Human Rights (‘ECHR’) 1950, a journalist must reveal a confidential source “where vital public or individual interests [are] at stake”.
But it is very difficult to prove when such circumstances will arise. This is because, specifically, in the decision of Goodwin v. United Kingdom, the journalist in this case (a William Goodwin) refused to reveal the confidential source of damaging information relating to a particular company – Tetra – and the information supplied to Goodwin was found to have come from a draft secret corporate plan that had gone missing from the company so that Tetra suspected a disloyal employee or collaborator.
As a result, the company in question alleged that the information was stolen and that its publication could damage the company’s reputation and future business prospects, so this meant that the domestic tribunals in the UK sided with the company, barring the publication of the information and ordering the journalist to reveal his source. However, the journalist refused and was held in contempt of court and fined £5,000 under section 10 of the Contempt of Court Act 1981 that was upheld by the Court of Appeal and then the House of Lords.
This meant the House of Lords specifically applied the principle expounded by Lord Reid in the decision of Norwich Pharmacal Co v. Customs & Excise Commissioners when upholding the Court of Appeal’s decision that stated “if through no fault of his own a person gets mixed up in the tortious acts of others … he … comes under a duty to assist the person who has been wronged”
But the journalist then looked to file a complaint with the European human rights system, arguing that his right to freedom of expression under the ECHR 1950 had been violated. Therefore, the ECtHR ruled the order to reveal the journalistic source and the fine imposed on the journalist for refusing to do so was incompatible with the ECHR 1950. Such a view was decided upon because the Court reasoned the “[p]rotection of journalistic sources is one of the basic conditions for press freedom” because “[w]ithout such protection, sources may be deterred from assisting the press in informing the public on matters of public interest”.
This was supported by the fact that it was recognised in the decision of Goodwin v. United Kingdom that the “Protection of journalistic sources is one of the basic conditions for press freedom … and is affirmed in several international instruments on journalistic freedoms” because otherwise “sources may be deterred from assisting the press”. Therefore, this would mean “the ability of the press to provide accurate and reliable information may be adversely affected” so that “source disclosure … cannot be compatible with article 10 of the Convention unless it is justified by an overriding requirement in the public interest”.
The decision followed on from that of the House of Lords in X Ltd v. Morgan-Grampian (Publishers) Ltd so that Lord Bridge of Harwich echoed their consensus as they indicated how the approach to be adopted to section 10 of the CCA 1981 involved very much the same balancing exercise as is involved in applying Article 10 of the ECHR 1950.
Lord Bridge reasoned that as to “whether disclosure is necessary in the interests of justice gives rise to a more difficult problem of weighing one public interest against another” and so, when commenting on Lord Diplock’s dictum in Secretary of State for Defence v Guardian Newspapers Ltd, “to construe ‘justice’ as the antonym of ‘injustice’ in section 10 would be far too wide. But to confine it to ‘the technical sense of the administration of justice … seems … too narrow” Therefore, people “should be enabled to exercise important legal rights and to protect themselves from serious legal wrongs”.
This means it “will not be sufficient … to show merely that he will be unable without disclosure to exercise the legal right or avert the threatened legal wrong on which he bases his claim”. As a result, “the judge’s task will always be to weigh … the importance of enabling the ends of justice to be attained in the circumstances of the particular case … against the importance of protecting the source”.
However, the House of Lords decision in Reynolds v. Times Newspapers altered the approach to qualified privilege because it established common law qualified privilege could apply to media publications and traditional duty and interest requirements could be satisfied by media publications so that publishers had no defence even if they were not careless or published the material to serve a general public interest.
Therefore, with a generic approach, all such media publications would be protected unless claimants proved malice so that this means that, under the influence of the ECHR 1950, journalists’ confidential sources are accorded very strong protection in England, which makes it extremely difficult to prove malice. Moreover, a generic approach was rejected because its scope would be too narrow Instead, the House of Lords concluded common law qualified privilege should focus on the publication’s public interest qualities
Similarly in the more recent decision of Ashworth Security Hospital v. MGN Ltd it was decided that the “care of patients at Ashworth is fraught with difficulty and danger” and “The disclosure of the patients’ records increases that difficulty”. This is because the court had had to decide whether to order disclosure of the identity of a hospital employee who had supplied confidential medical records on the Moors murderer Ian Brady to the Daily Mirror’s investigations editor.
Accordingly “The source’s disclosure was wholly inconsistent with the security of the records and the disclosure was made worse because it was purchased by a cash payment”. As a result the court took a strict line with this decision because of the risk of further confidential information being disclosed for profit, supported by the earlier decision in Interbrew v. Financial Times Ltd & Others.
Nevertheless, in looking to compare these decisions with another jurisdiction, it is interesting to consider the fact that when Turkey attempted to justify its interference with journalists’ rights to freedom of expression on national security grounds, the ECtHR resolved the journalist’s complaints against the State in its decision in the case of Halis v. Turkey In this case the Turkish government imprisoned a journalist for publishing a book review that looked to express positive opinions about aspects of the Kurdish separatist movement.
Therefore, the journalist was convicted domestically for violating the provisions of the Turkish Prevention of Terrorism Act 1991 through the dissemination of propaganda about an illegal separatist terrorist organisation. As a result, when the journalist filed a complaint with the ECtHR, the State defended that its restriction was necessary to protect national security.
Accordingly, the ECtHR found that the restriction in these circumstances was made pursuant to Turkish law and that the sensitive security situation and the use of violence by a separatist movement in Turkey and the measures taken by the government had the legitimate aim of protecting national security and public safety. But the ECtHR found that the conviction and suspended sentence of the journalist was not necessary in a democratic society and that it violated the journalist’s right to freedom of expression.
Similarly, in Sener v. Turkey, the owner and editor of a weekly Turkish paper was convicted of ‘disseminat[ing] propaganda against the State’ for publishing an article that referred to the military attacks on the Kurdish population as genocide, when Turkey again defended its interference with freedom of speech on national security grounds, and the ECtHRs held that the State had once again violated the applicant’s right to freedom of expression.
Moreover, in the more recent decision of Dammann v. Switzerland, it was held that there had been a violation of Article 10 of the ECHR 1950 when a journalist had been prosecuted and fined for inciting a civil servant to disclose an official secret. The case arose because of the fact that the journalist had asked an administrative assistant to tell him whether a list of suspects of a recent robbery had any previous criminal convictions and she had supplied that information in breach of official secrecy law.
Therefore, with this in mind, the Court held that the journalist’s source could be protected because the information supplied was a matter of great public interest and debate and the information in question could have been obtained by other means, such as through consulting law reports or press records.
Similarly, the Irish Constitution has always recognised the freedom of expression because of the fact that, after centuries of British rule ended in 1921, the new Irish state chose to draft its own written constitution. Therefore, with this in mind, the current Irish constitution has recognised the right to freedom of expression and also calls for the country’s authorities to prevent the media from undermining public order or morality, whilst also preserving the media’s right of liberty of expression.
But, in spite of this codification, Irish journalists and law reformers understand that defamation decisions including Campbell-Sharp v. Independent Newspapers (IRE) Ltd have seriously impeded this right so that freedom of the press is seriously restricted. This is because of the fact that liability costs have discouraged investigative journalism and activists in this area have sought parity with the other jurisdictions under Article 10 of the ECHR 1950 in practice as well as in statute.
In conclusion, this means that in looking to effectively consider whether section 10 of the Contempt of Court Act 1981, as judicially interpreted and applied, reflects Justice Meyer’s aforementioned view in Goodwin v. United Kingdom, it is clear that, whilst there is little doubt this provision provides the courts with an important protocol to protect journalists’ sources, section 10 does not give unequivocal reinforcement to journalists’ professional duty of confidentiality so that, worryingly, it is not just in exceptional cases that the statute’s protection is being overturned.
However, whilst in view of the nature and scope of many of the more recent decisions, since that found in Goodwin v. United Kingdom, where the domestic courts have ordered disclosure, journalists still largely place their obligations towards their sources above anything to the court and the administration of justice under section 10 of the CCA 1981. This is because, in such circles, the freedom of expression under Article 10 of the ECHR 1950 is considered paramount and, as was the case in Goodwin v. United Kingdom, the matter can always be referred to the ECtHR for judgment should the domestic courts prove unduly restrictive.
However, with this in mind, whilst one can only speculate what may be decided in cases like Ashworth Security Hospital v. MGN Ltd, it would appear, that specifically in this case, this might appear to fall within one of the exceptions provided by Article 10(2) of the ECHR 1950 – namely, “for preventing the disclosure of information received in confidence”. Therefore, section 10 of the CCA 1981 appears quite reflective of Justice Meyer’s aforementioned view because of the limited circumstances where it has been infringed upon in domestic law before and after the decision in Goodwin v. United Kingdom.
But, on the basis of the decisions in Turkey, Switzerland and Ireland, by way of comparison, it is all too clear that even where one of the exceptions under Article 10(2) of the ECHR 1950 is cited, it must be proved to the ECtHR satisfaction otherwise it will still apply.
This is because such a view arises from the fact that since, as we have already recognised, the European Court of Human Rights has categorically stated that the right to freedom of expression must be guaranteed not only for information and ideas that are favourably received, but also for those that shock the State Therefore, it must be recognised that the right to freedom of expression would be nonexistent if only statements acceptable to the government, and the majority, were allowed to be expressed so that all facts and opinions must be permitted, provided that they are not specifically restricted by the governing treaty.
Frazier. S ‘Liberty of Expression in Ireland & the Need for a Constitutional Law of Defamation’ (1999) 32(2) Vanderbilt Journal of Transnational Law 391
Gordon. R. S, Ward. T & Eicke. T ‘The Strasbourg Case Law: Leading Cases from the European Human Rights Reports’ Sweet & Maxwell (2001)
Hare. I ‘English Lessons in Comparative Public Law: Will the First Amendment have the Last Word?’ (2000) 10 Trinity Law Review 29
Hare. I ‘Method & Objectivity in Free Speech Adjudication: Lessons From America’ (2005) 54(1) ICLQ 49
Moncrieff. M ‘No names… unless the court decides otherwise’ The Guardian (08/04/02) (http://www.guardian.co.uk/media/2002/apr/08/mondaymediasection4)
Pasqualucci. J. M ‘Criminal Defamation & the Evolution of the Doctrine of Freedom of Expression in International Law: Comparative Jurisprudence of the Inter-American Court of Human Rights’ (2006) 29(2) Vanderbilt Journal of Transnational Law 379
Soames. M ‘Privilege, yes, but it is to protect the public’ The Times (26/07/05)
Weaver. R. L, Kenyon. A. T, Partlett. D. F & Walker. C. P ‘Defamation Law & Free Speech: Reynolds V. Times Newspapers and the English Media’ (2004) 37(5) Vanderbilt Journal of Transnational Law 1255
Table of Cases
Ashworth Security Hospital v. MGN Ltd  UKHL 29
Benjamin v. Minister of Information & Broadcasting  1 WLR 1040
Camelot Group plc v. Centaur Communications Limited  QB 124
Campbell-Sharp v. Independent Newspapers (IRE) Ltd No. 5557 (Ir. H. Ct. May 6, 1997)
Dammann v. Switzerland (Application No. 77551/01) ECtHR 2 May 2006
Derbyshire County Council v. Times Newspapers Ltd  AC 534
Fernando v. Sri Lanka Broadcasting Corporation (1996) 1 BHRC 104
Financial Times Ltd v Interbrew SA  EWCA Civ 274
Goodwin v. United Kingdom (1996) 22 EHRR 123
Halis v. Turkey  ECtHR 3
Interbrew v. Financial Times Ltd & Others  1 Lloyds Rep 542
Jersild v. Denmarkjudgment of 23rd September 1994, Series A no. 298
Norwich Pharmacal Co v. Customs & Excise Commissioners  AC 133
R v. British Broadcasting Corporation, ex parte ProLife Alliance  1 AC 185
Reynolds v. Times Newspapers  2 AC 127
Scharsach & News Verlagsgesellschaft v. Austria (2003) ECtHR 596
Secretary of State for Defence v Guardian Newspapers Ltd  AC 339
Sener v. Turkey  ECtHR 377
Sunday Times v. United Kingdom (1979) 2 EHRR 245
X Ltd v. Morgan-Grampian (Publishers) Ltd  1 AC 1
Table of Statutes
Bunreacht na hEireann 1921 (as amended)
Contempt of Court Act 1981
European Convention on Human Rights 1950
Human Rights Act 1998
Turkish Prevention of Terrorism Act 1991
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