Monday 4 January 2010

Happy New Year and Guest Post

Dear readers, first of all a very happy and good new year to all of you! The past year has seen this blog grow to over 70,000 pageviews in 2009 and I hope to continue the work in 2010. As a kick off, we start with the protection of journalistic sources. This Wednesday 6 January the Grand Chamber of the Court will hold a hearing in what may become a key case on the issue: Sanoma v. the Netherlands. In the earlier chamber judgment, a heavily divided Court did not find a violation of Article 10 ECHR. Professor Dirk Voorhoof of Ghent University guest-posted on this earlier last year. Here is another guest post of his, on the recent case of Financial Times Ltd. and others v. the United Kingdom, in which the Court unanimously found a violation of the Convention in a case on the same kind of issue. Is it an indication of where the Grand Chamber may go? Who knows....

European Court of Human Rights rules unanimously in favour of strong protection of journalistic sources

by prof. Dirk Voorhoof, Ghent University Belgium and Copenhagen University, Denmark.

Eight years ago British courts decided in favour of a disclosure order in the case of Interbrew SA v. Financial Times and others. The case concerns the order against four newspapers (FT, The Times, The Guardian and The Independent) and the news agency Reuters to deliver up their original copies of a leaked and (apparently) partially forged document by a person X., about a contemplated takeover by Interbrew of SAB (South African Breweries). The International Federation of Journalists protested strongly against the disclosure order in the Interbrew case. “This unprecedented legal assault reflects a starting level of corporate arrogance”, Aidan White, General Secretary of the Brussels based IFJ said (IFJ Press release 24 July 2002, According to White “freedom of expression appears to count for nothing as the company wages a private war against the journalists’ right to report”. The IFJ called the disclosure order “a grotesque and outrageous assault on press freedom”, as it posed “a challenge to journalists’ right to report”.

In a judgment of 15 December 2009 the European Court of Human Rights (Fourth Section) has now finally come to the conclusion that this disclosure order was a violation of the right of freedom of expression and information, which includes press freedom and the right of protection of journalistic sources as protected by Article 10 of the European Convention of Human Rights.

The facts and the proceedings in the United Kingdom

On the basis of a leaked report and further investigations by journalists, the British media in November and December 2001 had reported that Interbrew (now: Anheuser Bush InBev NV), had been plotting a bid for SAB. The media coverage had a clear impact on the market in shares of Interbrew and SAB, Interbrew’s share price decreasing, while both the share price and the volume of SAB’s shares traded had obviously increased.

On request of Interbrew, the High Court on 19 December 2001 ordered delivery up of the documents under the so-called Norwich Pharmacal principle. This principle implies that if 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 four newspapers and the news agency were ordered not to alter, deface or dispose or otherwise deal with the documents received by person X. and to deliver up the documents to the Interbrew’s solicitor within 24 hours. The newspapers and Reuters appealed, but the disclosure order was confirmed by the Court of Appeal. In its conclusions the Court of Appeal referred to the European Court’s judgment in the Goodwin case, in which it is pointed out “that freedom of expression constitutes one of he essential foundations of a democratic society” and “protection of journalistic sources is one of the basic conditions for press freedom”. The London Court of Appeal in its judgment of 8 March 2002 emphasized that “the news media, in consequence enjoy in s. 10 of the 1981 Act a high initial level of protection, not in their own but in the public interest”. In the concrete circumstances of the case however, the Court of Appeal came to the conclusion that the order for disclosure was rightly made against all the defendant newspapers and the news agency. In the London Court’s judgment it is emphasized that what matters critically, is the sources evident purpose in this case: “It was on any way a maleficent one, calculated to do harm whether for profit or for spite, and whether to the investing public or Interbrew or both”. The public interest in protecting the source of such a leak was considered not sufficient to withstand the countervailing public interest in letting Interbrew seek justice in the courts against the source. It is also underlined that there is “no public interest in the dissemination of falsehood”, as the judge had found that the document, leaked by person X. to the media, was partially forged. The Court of Appeal said: “While newspapers cannot be asked to guarantee the veracity of everything they report, they in turn have to accept that the public interest in protecting the identity of the source of what they have been told is disinformation may not be great”. Hence the Court of Appeal dismissed the appeals. On 9 July 2002 the House of Lords refused the newspapers’ leave to appeal, following which Interbrew required the newspapers and Reuters to comply with the court order for delivery up of the documents. The newspapers and Reuters however have kept on refusing to comply and applied to the European Court of Human Rights, arguing that their rights under Article 10 of the Convention had been violated.

European Court emphasizes public interest of protection of journalistic sources

The European Court of Human Rights has now unanimously confirmed that the British judicial authorities in the Interbrew case have indeed dramatically neglected the interests related to the protection of journalistic sources, by impertinently overemphasizing the interests and/or arguments in favour of source disclosure.

The Court accepts that the disclosure order in the Interbrew case was prescribed by law (Norwich Pharmacal and Section 10 of the Contempt of Court Act 1981) and was intended to protect the rights of others and to prevent the disclosure of information received in confidence, both of which are legitimate aims. The Court however does not consider the disclosure order necessary in a democratic society.

First the Court in general terms reiterates that freedom of expression constitutes one of the essential foundations of a democratic society and that, in that context, the safeguards guaranteed to the press are particularly important. The Court states firmly that “protection of journalistic sources is one of the basic conditions for press freedom. Without such protection, sources may be deterred from assisting the press in informing the public on matters of public interest. As a result, 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” (§ 59). 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, a disclosure order cannot be compatible with Article 10 unless it is justified by an overriding requirement in the public interest. The Court refers to its case law, as developed since Goodwin v. UK (27 March 1996).

The European Court also notes that disclosure orders of journalistic sources 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 Courts accepts that it may be true that the public perception of the principle of non-disclosure of sources would suffer no real damage where it was overridden in circumstances where a source was clearly acting in bad faith with a harmful purpose and disclosed intentionally falsified information. However the Court firmly emphasizes that domestic courts should be slow to assume, in the absence of compelling evidence, that these factors are present in any particular case. In any event, given the multiple interests in play, the European Court emphasizes most importantly that “the conduct of the source can never be decisive in determining whether a disclosure order ought to be made but will merely operate as one, albeit important, factor to be taken into consideration in carrying out the balancing exercise required under Article 10 § 2” (§ 63).

Applying these principles to the Interbrew case the European Court of Human Rights comes to the conclusion that the British Courts have given too much weight to the alleged bogus character of the leaked document and to the assumption that the source had acted mala fide. While the Court considers that there may be circumstances in which the source's harmful purpose would in itself constitute a relevant and sufficient reason to make a disclosure order, the legal proceedings against the four newspapers and Reuters did not allow X's purpose to be ascertained with the necessary degree of certainty. The Court therefore does not place significant weight on X's alleged purpose in the present case.

The Court finally emphasizes the public interest in the protection of journalistic sources.

These are the crucial considerations of the judgment :

“67. As regards the allegations that the leaked document had been doctored, the Court recalls the duties and responsibilities of journalists to contribute to public debate with accurate and reliable reporting. In assessing whether a disclosure order is justified in cases where the leaked information and subsequent publication are inaccurate, the steps taken by journalists to verify the accuracy of the information may be one of the factors taken into consideration by the courts, although the special nature of the principle of protection of sources means that such steps can never be decisive but must be considered in the context of the case as a whole (..). In any event, the domestic courts reached no conclusion as to whether the leaked document was doctored, the Court of Appeal observing that it had no way of knowing, any more than the applicants, whether X, if cornered, would demonstrate that he had simply assembled authentic documents from different places within Interbrew, GS and Lazards. The Court likewise considers that it has not been established with the necessary degree of certainty that the leaked document was not authentic. The authenticity of the leaked document cannot therefore be seen as an important factor in the present case.
68. It remains to be examined whether, in the particular circumstances of the present case, the interests of Interbrew in identifying and bringing proceedings against X 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.
69. In this respect, the Court observes at the outset that where an unauthorised leak has occurred, a general risk of future unauthorised leaks will be present in all cases where the leak remains undetected (..).
70. While, unlike the applicant in the Goodwin case, the applicants in the present case were not required to disclose documents which would directly result in the identification of the source but only to disclose documents which might, upon examination, lead to such identification, the Court does not consider this distinction to be crucial. In this regard, the Court emphasises that a chilling effect will arise wherever journalists are seen to assist in the identification of anonymous sources. In the present case, it was sufficient that information or assistance was required under the disclosure order for the purpose of identifying X (..).
71. The Court, accordingly, finds that, as in the Goodwin case, Interbrew's interests in eliminating, by proceedings against X, the threat of damage through future dissemination of confidential information and in obtaining damages for past breaches of confidence were, even if considered cumulatively, insufficient to outweigh the public interest in the protection of journalists' sources”.

Accordingly, the Court finds that there has been a violation of Article 10 of the Convention. The judgment of the European Court has a binding character. The consequence is that the refusal by Financial Times, The Guardian, The Times, The Independent and Reuters to deliver up the requested document, undoubtedly finds support in the European Convention of Human Rights.
Many thanks, Dirk!