The European Court of Human Rights yesterday gave judgment in the Interbrew case: Financial Times Ltd & Ors v UK (Application no. 821/03). In summary, the ECHR held unanimously that an order requiring various media organisations to disclose original leaked documents which might have led to the revelation of a journalistic source constituted an unjustified interference with Article 10 ECHR (the right to freedom of expression). You can read the full judgment here.
On 27 November 2001, a journalist at the Financial Times received a copy of a leaked document from an unknown source concerning Interbrew’s possible takeover bid for South African Breweries. The FT journalist contacted Interbrew’s investment bank advisers, Goldman Sachs, the same day and told them that he intended to publish the leaked document. The article was then published by the FT that evening referring to the leaked document and to the fact that Interbrew had been plotting a bid for SAB. The Times, Reuters, The Guardian and The Independent also received copies of the leaked document and each proceeded to publish articles about the same.
Interbrew tried to locate the source of the leaked document but without success. Interbrew then issued a statement to the press and there was also some discussion in the media that the document may have been doctored. The press coverage had a significant impact on the market for Interbrew and SAB shares, with the number of SAB shares being traded going from 2 to 44 million.
In December 2001, Interbrew applied for a Norwich Pharmacal order against four media organisations seeking disclosure of the leaked documents, in order that they could use them to try to identify the source. The High Court
granted the order, finding that the source had “deliberately admix[ed] with that confidential information false information (a lethal concoction) to create a false market in the shares of the Claimant and SAB, a serious criminal offence. There must be a real risk of repetition, if [X] is not identified. Beyond the substantial private interest of the Claimant, there is a substantial public interest in identifying [X] and taking all necessary steps to prevent any repetition.”
The media organisations appealed the decision to the Court of Appeal
where the decision was upheld, concluding that the public interest in protecting the source of a leak was not sufficient to withstand the prevailing public interest in seeking justice for the source. The Court was significantly persuaded by the fact that it was clear that the intention of the source was calculated to “maximise the mischief… whether for profit or for spite, and whether to the investing public or Interbrew or both…”
The House of Lords refused the media organisations permission to appeal in July 2002. On 20 December 2002, they then lodged an application at the European Court of Human Rights. The applicants complained that the court order requiring disclosure of the leaked documents could lead to the identification of journalistic sources contrary to Article 10 and Article 8.
The Court held unanimously that there had been a violation of Article 10. The Court referred first to the Recommendation
adopted by the Committee of Ministers of the Council of Europe on 8 March 2000, which emphasises the importance of the right of journalists not to disclose their sources. The Court went on to say:
“The Court 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. Furthermore, protection of journalistic sources is one of the basic conditions for press freedom.”
The Court then acknowledged that the interference with Article 10 had been prescribed by law, pursuant to the common law Norwich Pharmacal principle and section 10 of the Contempt of Court Act 1981.
However, the Court considered that the alleged harmful intent of the source and the doubts concerning the authenticity of the document had not been ascertained with sufficient certainty for them to be taken into account in the legal proceedings against the applicants. The Court did acknowledge that it might be the case that the public perception of the principle of non-disclosure 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 disclos[ing] intentionally falsified information”. The Court was also persuaded by the fact that even though Interbrew had received prior notice of the FT’s intention to publish, Interbrew had not attempted to injunct publication. Neither had Interbrew given complete evidence as to the inquiries it had undertaken to trace the source. The Court also noted that a disclosure order has a potential detrimental effect not only on the source in question but also on the newspaper, whose reputation might be negatively affected in the eyes of potential future sources, and on the public who may have an interest in receiving information imparted through anonymous sources.
Emphasising the chilling effect of journalists being seen to assist in the identification of anonymous sources, the Court found that Interbrew’s interests in eliminating the threat of damage through future dissemination of confidential information were insufficient to outweigh the public interest in the protection of journalists’ sources. The Court therefore found that there had been an unjustified interference with Article 10.
For further comment from 5RB (Prof. Tony Smith of 5RB appeared for the applicant) see here. See also the The Independent and The Guardian.