Journalists often build up contacts from which they get information for their articles. These contacts are built up through mutual trust and co-operation by both parties.
Where a person provides information on the basis that he will not be named or compromised, it is a key rule of journalism that this will remain so. However, the right of protection of journalistic sources does not attract absolute privilege against disclosure as in the case of a doctor or a lawyer.
Often individuals who speak to journalists in this manner are breaching a duty of confidence which they owe to a third party, eg, their employer. As a result, journalistic protection of sources can often clash with different principles held by the court. The outcome in a case like this will often depend upon the circumstances but courts are often reluctant to order the disclosure of a source.
The main legislation governing the protection of journalistic sources is the Contempt of Court Act 1981 (CCA 1981). Section 10 provides that in a free and democratic society there is a need to protect journalists’ sources and presumes in favour of those journalists wishing to do so. There are however exceptions to this presumption where disclosure of the information will be deemed necessary. These are:
- in the interests of justice;
- in the interests of national security;
- for the prevention of disorder or crime;
In the interests of justice.
Whether disclosure of a journalistic source will be deemed to be in the interest of justice is dependent on the facts of the case. Courts are reluctant to establish that disclosure is in the interest of justice and will usually only do so where vital public or individual interest are at stake.
An example of this may be a large company in financial difficulties having this exposed by a newspaper using a confidential source within the company. The company may argue that there has been a breach of confidence by the source and therefore in the interests of justice that source should be disclosed to enable a breach of confidence claim to be brought. Nevertheless, the court will often claim that the public interest in revealing the company’s financial difficulties outweighs the company’s interest in the breach of confidence claim.
In the interests of national security
Where national security is concerned the necessity for disclosure of the source will be almost automatic. Keeping information concerning national security confidential outweighs the right to keep the source confidential.
This is because the people divulging information regarding national security will usually be those employed in government and therefore have an obligation of confidentiality. If someone in this position is willing to provide information to the press, they are not fulfilling their role as a trusted servant to the government and will need to be indentified and removed from their position to protect national security.
For the prevention of disorder or a crime
The public interest in preventing disorder or a crime is said to be of such overriding importance that disclosure will be almost automatic. If the disclosure can prevent a criminal offence taking place or some form of public disorder which affects the general public of the country, that will be considered more important than protecting the interests of an individual journalistic source.
Article 10 of the European Convention on Protection of Human Rights (the Convention) guarantees the human right of freedom of expression and the European Court of Human Rights has had a pivotal role to play in ensuring that confidential journalistic sources are afforded the requisite protection
Where a UK court held that the public interest in protecting a confidential source did not outweigh the public interest in enabling a claim by a private company against that source, (ECtHR) in Goodwin v United Kingdom (1996) overturned this decision stating that it was a breach of Article 10. Then in Sanoma Uitgevers BV v the Netherlands (2010), the ECtHR overturned a ruling that had compelled Dutch journalists to reveal the names of participants in illegal car races.
Under s 8 of the Police and Criminal Evidence Act (PACE) police are able to search premises where an offence has been committed and there is certain evidence on the premises to assist with the investigation.
This does not apply to certain material such as:
- legal privilege;
- excluded material;
- special procedure material.
Journalistic material falls within both excluded material (confidential journalistic material) and special procedure material (non confidential journalistic material) and can only be seized by the police if they apply for a warrant under s 9 of the PACE.