When are journalists’ sources protected?

The Court of Appeal in John & ors v Express Newspapers & ors (Court of Appeal, 19 April 2000) decided on the facts of that case that the journalist involved did not have to disclose her source.

The appeal followed a decision by Morland J in March ordering Express journalist Rachel Baird to disclose the name of the person who had passed her confidential documents obtained from the rubbish bins of Sir Elton John’s barrister concerning a dispute between Sir Elton and his accountants. Morland J had held that the person sifting through the dustbins was likely to be on the look-out for other confidential information and thus “presented a very real and continuing danger to the interests of justice threatening the confidentiality of legal professional privilege, a cornerstone in the achievement of justice...“.

The Court of Appeal did not, however, consider the threat to legal confidentiality to be as significant as Morland J had thought it to be, and felt that his decision would mean that lawyers’ communications were afforded a value over and above that of the work of journalists. The Court held that, under section 10 of the Contempt of Court Act 1981, the disclosure of a journalist’s source had to be established to be necessary in the interests of justice before such an order could be made and Sir Elton had not satisfied that test.

This decision should be contrasted with Camelot Group plc v Centaur Communications (Court of Appeal, 23 October 1997), another case in which there was a risk of continuing disclosure, but which was decided very differently. In that case, a journalist from Marketing Week had published an article setting out Camelot’s year-end financial results, which were not due to be published by the company for another week. Camelot realised that the results had been leaked to the journalist by someone on its staff and sought an order that the documents provided to the journalist be delivered up, as they believed that this would identify the source of the leak. The order was granted by the judge at first instance and upheld by the Court of Appeal. Schiemann LJ stated that “there is...a continuing threat of damage...Clearly there is unease and suspicion amongst the employees of the company which inhibits good working relationships. Clearly there is a risk that an employee who has proved untrustworthy in one regard may be untrustworthy in a different respect and reveal the name of, say, a public figure who has won a huge lottery prize...It is clear that the public interest in protecting some sources is stronger than that in protecting other sources. So far as the present case is concerned I can see no public interest in protecting him...“.

Both cases were decided on their particular facts but have not settled the law on the protection of sources. It seems that one of the criteria the court will consider is the likelihood of further disclosures by the source in question, but it is difficult to see why the source in John was protected (despite apparently making a business of foraging through rubbish for materials to pass on to journalists) when the source in Camelot was not.

For further information contact Tim Hardy, Head of Commercial Litigation and Dispute Resolution on +44 (0)20 7367 3000 or e-mail [email protected].

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