Press resist court orders to disclose documents

Two recent judgments have highlighted the difficulties facing companies who wish to identify an individual who, in breach of confidence and/or breach of employment contract, has provided confidential corporate information to the press. In this situation a company may apply to the court for what is known as a “Norwich Pharmacal Order, following the decision of the House of Lords in Norwich Pharmacal v Commissioners of Customs and Excise [1974] AC 133. Such an Order can compel a publication to disclose information identifying its source.

In order to obtain a Norwich Pharmacal Order, the Applicant must establish that a third party facilitated the wrongdoing of an unknown person against whom he wishes 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. Newspapers, in publishing the information provided by the source of the leak, may facilitate a wrongdoing against the company, such as breach of confidence. The paper can be ordered to hand over documents identifying the source in order to right the wrong.

The press will oppose applications for Norwich Pharmacal Orders and fight vehemently to protect the confidentiality of its sources, arguing that an order for disclosure attacks the fabric of freedom of expression - if sources were not assured anonymity, there would be a reluctance to pass information to newspapers. This would then undermine the ability of the press to perform its role in society of disseminating information that is in the public interest. This public interest is protected by law under s.10 of the Contempt of Court Act 1981 – which protects the press from disclosing their sources of information, and Article 10 of the Human Rights Act 1998 – which protects the right to freedom of expression. However, both Acts allow the protection to be overridden where it is necessary in the interests of justice and proportionate.

The courts accept that granting Norwich Pharmacal Orders against the press has a “chilling effect on freedom of expression and will only grant such Orders in exceptional circumstances. As a starting point, the courts will only consider granting an Order if it is absolutely necessary to identify the source of the leak. Most critically, the courts will only grant a Norwich Pharmacal Order if the public interest in disclosure outweighs the public interest in protecting journalists’ sources.

In December last year the brewer, Interbrew, obtained a Norwich Pharmacal Order which compelled the Times, the FT, the Independent and the Guardian to hand over documents which identified the source of leaked information concerning a possible takeover offer for the company. The source was assumed to be an employee of Interbrew or its advisors. The Interbrew case was exceptional because the source had doctored information concerning the possible takeover bid in an attempt to do harm to the investing public or Interbrew. The public interest in disclosure outweighed the public interest in protecting a source of such maleficent intent. The Court of Appeal upheld the judgment in March this year and last month the House of Lords refused to grant the newspaper leave to appeal the ruling. Despite this and despite the Editors facing jail for contempt of court, the newspapers were steadfast in refusing to hand over the documents which identify the source. The drama was defused shortly afterwards when Interbrew dropped its attempt to compel the newspapers to hand over the documents, and instead handed the case to the FSA to investigate.

Meanwhile, a similar case has taken centre stage. Last month the House of Lords ordered Mirror Group Newspapers to disclose the identity of the person or persons involved in providing the Daily Mirror with confidential information regarding the medical condition of the Moors murderer, Ian Brady. The information was obtained by a source who had access to Brady’s medical records when Brady was a patient at Ashworth Security Hospital in 1999. The case was exceptional because it involved the disclosure of medical information. The Lords decided that if sources of leaks of such information were allowed to go unidentified and therefore unpunished, it would encourage future leaks. The threat that medical information could be leaked would create an atmosphere of distrust in the medical industry that would have adverse consequences for both patients and medical staff. The Mirror reluctantly agreed to name the freelance journalist who wrote the report on Brady. However, the journalist, Robin Ackroyd, has refused to reveal the source of his information. It remains to be seen whether Ashworth hospital will pursue its action against Ackroyd.

In both cases the courts made it clear that they were not opening the floodgates to orders for disclosure against the press, and that such orders would only be made in exceptional circumstances. However, as highlighted by the Interbrew and Ashworth cases, it is likely that even if a company manages to obtain an order for disclosure of documents identifying a press source, it will then have to endure a highly public struggle to enforce it.

For further information please contact Tim Hardy by at [email protected] or on +44(0)20 7367 2533.