Court orders disclosure of press source

United Kingdom
The recent Court of Appeal case of Interbrew S.A. v Financial Times and others demonstrated the ability of companies to obtain a court order to compel the press to disclose information which identifies an individual who has leaked confidential company information.

The case concerned an action brought by the claimant, Interbrew, to compel the defendants, the Financial Times, the Independent, the Guardian and the Times, to deliver up copies of a document leaked to the defendant newspapers concerning Interbrew’s possible takeover bid for South African Breweries. Interbrew obtained a Norwich Pharmacal Order which required the newspapers to deliver up the original document in order that Interbrew could identity the source of the leak. In order to obtain a Norwich Pharmacal Order, the Claimant must establish that the third party facilitated the wrongdoing of an unknown person against whom they wish to seek redress. As a result of assisting the wrongdoing, albeit innocently, the third party comes under a duty to assist in righting the wrong. In this case, the newspapers, in publishing the information provided by the source of the leak, had facilitated a wrongdoing, which in this case the court accepted to be breach of confidence.

However, the Interbrew case highlights that even if it is accepted that the criteria for obtaining a Norwich Pharmacal Order has been met, there are numerous hurdles to overcome before the court can order the press to disclose the relevant information. Journalists consider that they have a duty to protect the confidentiality of their sources and consider this duty critical to ensuring the freedom of the press. In this case, some of the defendant newspaper editors briefly threatened to go to jail rather than disclose their source. s.10 of the Contempt of Court Act gives statutory effect to journalists’ duty to protect their sources and limits the situations in which a court may compel the press to disclose information: a court may only order disclosure where it is necessary in the interests of justice or national security or for the prevention of crime or disorder.

Where a civil action (as oppose to criminal) is being pursued against the wrongdoer, it will be appropriate and relevant to argue that the disclosure is in the interests of justice. It must be shown that the interests of justice are engaged and that the disclosure is necessary to pursue the relevant justice. Interbrew was able to show that it had a genuine claim for breach of confidence and had therefore engaged the interests of justice. Interbrew was also able to show that the disclosure was necessary because it had exhausted other means of identifying the source of the leak; specifically, the private investigators it had hired had failed in that regard.

As all domestic court decisions must now be compatible with the Human Rights Act 1998 (HRA), s.10 of the Contempt of Court Act must be read in light of the right to freedom of expression at Article 10 of the HRA. In considering the right to freedom of expression, courts must take into account what is necessary in a democratic society. The courts accept that protecting journalists’ sources is crucial to ensuring the freedom of the press, and that freedom of the press is necessary in a democratic society and therefore in the public interest. However, Article 10(2) also allows for the exercise of the right to freedom of expression to be restricted where it is necessary to protect the rights of others. The courts must therefore weigh up two competing public interests - the public interest in the protection of journalists’ sources and the freedom of expression, against the public interest in allowing the claimant to seek justice. To override such an important public interest as freedom of expression, the courts demand that what is necessary in the interests of justice meet a pressing social need – not merely an individual one, and that the interference with freedom of expression must be a proportionate response to the relevant risk.

In Interbrew’s case, the Court accepted that the order for disclosure would be a proportionate response to the genuine threat of the source leaking more information and committing further breaches of confidence. An equally critical factor was that the source aimed to do harm to the investing public and/or Interbrew (this was evidenced by the fact that he had falsified some of the information). As a result, the Court of Appeal found that the “public interest in protecting the Source of such a leak is not sufficient to withstand the countervailing public interest in letting Interbrew seek justice in the courts against the Source.

Although the Interbrew case is not the first in which the courts have ordered the press to disclose information identifying a source , the case is encouraging in confirming that companies may, in certain circumstances, succeed in an action for disclosure against even the most prolific and well-respected newspapers. However, the courts take the public interest in the protection of journalists’ sources extremely seriously, and will not always grant an order for disclosure. The case demonstrates that, provided the criteria for a Norwich Pharmacal Order is satisfied, the courts are most likely to order the press to disclose documents identifying a source where the interests of justice are engaged, where all other avenues to identifying the wrongdoer have been exhausted, where disclosure is a proportionate response to the wrongdoing, and where the wrongdoer’s purpose is such that it undermines the public interest in protecting him.

For further information please contact Tim Hardy by telephone on +44(0)20 7367 2533 or by e-mail at tim.hardy@cms-cmck.com