The Right to Free Expression and the Protection of Journalistic Sources: When Can a Journalist be Compelled to Reveal their Source?

Financial Times Ltd & Ors v United Kingdom [2009] ECHR 2065 (15 December 2009) This decision explores the right to freedom of expression as it applies to the protection of journalists’ sources.  The Court’s finding of a violation in this case shows that, at least in Europe, compelling circumstances will be required before limitations on this protection will be considered necessary and justified in a democratic society.

Facts

In October 2001, Interbrew, a Belgian brewing company, retained investment bank Goldman Sachs to investigate an association with, and potential takeover of, South African Breweries (‘SAB’).  Goldman Sachs prepared a report and presentation on its findings, both of which contained confidential and market-sensitive information, and delivered these to Interbrew in November 2001.

In late November 2001, an unknown person (referred to in the judgment as ‘X’) sent copies of the Goldman Sachs presentation to a number of UK news organisations, including the applicants in the case.  Interbrew claims that the version of the presentation sent to those news organisations had been altered slightly from the version submitted to Interbrew.  It claims the alterations were (1) a change in the offer price proposed for SAB shares and (2) the insertion of a timetable for the offer to purchase SAB.

Upon receiving the presentation, the applicants published stories about it, with some reporting the timetable and offer price.  Prior to publication, one journalist contacted a representative of Goldman Sachs, who informed Interbrew of the leak.  Shortly after the stories were published, Interbrew issued press releases stating that the leaked document contained false information.  The news coverage led to what the Court described as ‘significant’ movement in the share prices of Interbrew and SAB.

Interbrew asked a security consulting firm to identify X, but its investigation failed.  The firm advised Interbrew that it would be more likely to succeed in identifying X if it had access to the original leaked document.  Interbrew applied to the UK High Court for injunctive relief against the news organisations accordingly.

Under UK law, a Court has jurisdiction to require delivery of relevant documents from a person if they have, through no fault of their own, become mixed up in the tortious acts of another.  However, despite this, the law also says that a journalist cannot be compelled to reveal their source unless this is shown to be ‘necessary in the interests of justice or national security or for the prevention of disorder or crime’.

Applying these principles, the UK High Court granted Interbrew an injunction requiring the news outlets to deliver up the leaked document to Interbrew’s solicitors.  The injunction was upheld on appeal.

Decision

The news outlets complained to the European Court that the decision of the UK courts to grant the injunction to Interbrew violated their right to freedom of expression, as protected by art 10 of the European Convention on Human Rights.

Article 10 provides that everyone has the right to freedom of expression.  It further says that this freedom may only be subject to such restrictions as are prescribed by law and necessary in a democratic society for, relevantly, the prevention of crime or the disclosure of confidential information.  The only question for the Court here was whether the restriction imposed by the UK Courts was ‘necessary in a democratic society’.

The Court had found in an earlier case that the protection of journalistic sources is an essential part of press freedom, and cannot be limited compatibly with art 10 unless justified by an overriding public interest.  It notes that disclosure orders generally not only affect the source in question but also potential future sources.  Accordingly, the Court reminds us that the ‘necessity’ of a restriction must be ‘convincingly established’, and where falsification or a harmful purpose is alleged, ‘courts should be slow to assume, in the absence of compelling evidence, that these factors are present’.

Applying these principles to the facts, the Court found that the restriction on press freedom imposed by the injunction could not be justified.  Although the ‘harmful purpose’ of a source may amount to a public interest sufficient to justify a restriction, in this case the Court did not think the legal proceedings, which were conducted in haste, allowed this to be established with any certainty.  Likewise, the falsification or otherwise of the presentation could not have been known by the UK courts, dependent as this allegation was on the evidence of Interbrew.  In light of these uncertainties, the Court held that the resultant public interest here, namely, the interest of Interbrew in preventing future leaks and obtaining compensation from X, could not outweigh the public interest in protecting the media’s sources.

Thus the Court found there had been a breach of art 10 of the Convention.

Relevance to the Victorian Charter

Freedom of expression is protected in Victoria through s 15 of the Charter of Human Rights.  This case is a useful reminder that freedom of expression protects not just a journalist’s right to protect their sources, but also their right to protect documents that might identify their sources.

The Supreme Court has a broad discretion to order discovery of particular documents by parties to litigation (Supreme Court (General Civil Procedure) Rules 2005 (Vic) rr 29.07-29.09).  Unlike equivalent Commonwealth legislation, the Evidence Act 2008 (Vic) does not contain any provisions which a journalist can rely on to protect his or her sources.  In the absence of such express protection, a journalist would need to argue that the court’s power should be interpreted consistently with the journalist’s right to freedom of expression, and therefore circumscribed so that it does not allow the disclosure order to be made (Charter s 32(1)).  However, as courts are not public authorities, and therefore are not required to act compatibly with human rights, there may be limits to this argument (Charter ss 4(1)(j) and 38(1)).

The decision is available at http://www.bailii.org/eu/cases/ECHR/2009/2065.html.

Sharyn Broomhead, Mallesons Stephen Jaques Human Rights Law Group