Financial Times Limited and others v United Kingdom (application number 821/03), 15 December 2009.

From time to time, an anonymous brown paper envelope finds its way mysteriously onto a reporter’s desk. That envelope contains leaked confidential documents telling a hell of a good story. The story sees the light of day; the identity of the source of the leak does not.

Why? Because the media’s right to protect a source is itself protected by section 10 of the Contempt of Court Act 1981: ‘No court may require a person to disclose, nor is any person guilty of contempt of court for failing to disclose, the source of information contained in a 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.’

However, a case rooted back in 2001 that has only just been heard in the European Court of Human Rights (ECHR) threatened to allow the unmasking of an anonymous source. Fleet Street feared this would infringe upon the media’s important right to protect their sources and keep open the vital channels of communication between them (through the disclosure of documents leaked to the media).

The European Convention on Human Rights, incorporated into UK domestic law by the Human Rights Act 1998, guarantees basic human rights including the article 10 right to freedom of expression. In December 2009, the ECHR ruled that an order against the media applicants – Financial Times Newspapers Ltd, Independent News and Media Ltd, Guardian Newspapers Ltd, Times Newspapers Ltd and Reuters Group Plc – requiring them to deliver up leaked documents disclosed to them in case they should assist in disclosing the identity of the source, constituted an infringement of the media’s rights under article 10.

In 2001, the board of the Belgian brewing company Interbrew instructed its investment bank advisers, Goldman Sachs and Lazard, to carry out some work in relation to a potential association between it and a competitor, South African Breweries (SAB), with a view to a possible takeover by Interbrew. A document was prepared by the banks. Some time later a person, whose identity remains unknown even to the media applicants, came into possession of the document and sent copies of it – allegedly slightly altered from the original, giving a higher price for the SAB shares than quoted in the original and including a timetable for making the offer for the takeover – to the newspapers.

The newspapers published various stories referring to, and including extracts from, the leaked documents and about the potential takeover, resulting in a substantial impact on the share prices of both companies.

While the applicants had not faced any application for an injunction to prevent the disclosures before publication, although Interbrew had alerted them to the situation, after publication Interbrew hired the private investigators Kroll to find the source of the leak – but to no avail. It therefore applied for relief under the Norwich Pharmacal principles, requiring the newspapers to deliver up the documents on advice from Kroll that this might help to identify the source. Under the Norwich Pharmacal principles, where a person through no fault of his own becomes involved in the wrongdoing of others so as to facilitate that wrongdoing, he comes under a duty to assist the person who has been wronged by giving him full information and disclosing the identity of the wrongdoer.

The Norwich Pharmacal relief was granted at first instance and upheld – albeit reluctantly – by the Court of Appeal, which found that, here, the public interest in allowing Interbrew to attempt to seek to enforce its rights in breach of confidence against the source took precedence over the public interest in allowing the media to protect their sources. The media refused to comply with the court order and sought in the ECHR to have the decision ruled unlawful.

The ECHR found the Norwich Pharmacal order to be prescribed by law and to pursue the legitimate aim of protecting the rights of others in preventing the disclosure of information received in confidence. It therefore had to weigh the competing rights of the parties against each other: ‘Having regard to the importance of the protection of journalistic sources for press freedom in a democratic society and the potentially chilling effect that an order for disclosure of a source has on the exercise of that freedom, such a measure cannot be compatible with article 10 unless it is justified by an overriding requirement in the public interest.’ Was there such an overriding requirement here?

Of relevance to the ECHR was the extent of the impact of the disclosure order in question: ‘In the case of disclosure orders, the court notes that they have a detrimental impact not only on the source in question, whose identity may be revealed, but also on the newspaper against which the order is directed, whose reputation may be negatively affected in the eyes of future potential sources by the disclosure, and on the members of the public, who have an interest in receiving information imparted through anonymous sources and who are also potential sources themselves.’

The ECHR noted the reliance by the domestic courts on the perceived intention of the source, as ‘on any view a maleficent one’. While it found that the motive of the source might in some cases constitute a relevant reason to make a disclosure order, it did not place significant weight itself on the source’s alleged purpose in this case. It also noted the reliance placed by the domestic courts on the assertion that the leaked documents had been doctored – but again, it did not find the authenticity of the leaked document or any alleged doctoring, to be an important factor in the case.

What was determinative was whether ‘in the particular circumstances of the present case, the interest of Interbrew in identifying and bringing proceedings against X [the source] with a view to preventing further dissemination of confidential information and to recovering damages for any loss already sustained are sufficient to override the public interest in the protection of journalistic sources’.

In its conclusion, it emphasised that ‘a chilling effect will arise wherever journalists are seen to assist in the identification of anonymous sources’. Why? Because ‘sources may be deterred from assisting the press in informing the public in matters of public interest. The vital "public watchdog" role of the press may be undermined and the ability of the press to provide accurate and reliable reporting may be adversely affected’. Accordingly, the right to pursue the source for past breaches and to protect against future breaches, even if taken cumulatively, did not override this important right of the media to protect their sources. There had, accordingly, been a violation of article 10.

This is an immensely valuable decision for the applicants and for the media generally. It is one that should protect their ability to protect their own sources, and thereby keep the wheels of the news industry going, long into the future. Worth every penny, they would probably say.

Let us hope they do think so, because, while it found in their favour, the ECHR was not so generous on the question of the applicants’ costs. It considered the nearly £800,000 costs claimed by all applicants to be ­‘unreasonably high’ and awarded only £143,000 to be shared among all the newspapers.

Consequently, the UK government may consider that it has got away with this breach of the convention rather cheaply – while the decision allows the media to protect its sources, the government has been allowed to protect its own financial resources.

Amber Melville-Brown, Withers