UK: The Source of the Problem - Section 10 Contempt of Court Act 1981

Intensive coverage of the Hutton Inquiry has highlighted once again just how much trouble an anonymous source can make, not only for the employer he sneaks on but also for the journalist who laps it up and publicises it. What can the employer do to find out where the leak is coming from, and how can the media defend themselves?

The protection of a confidential source is an article of faith to journalists, though the strength of commitment to the principle is little appreciated outside the industry. The fact is that news stories often start and some end up relying solely on a single secret contact, a person who would not talk without the assurance of anonymity. In theory the law recognises the importance of this strange relationship so as to ensure the open discussion of matters of important public interest. The provision for freedom of expression in Article 10 of the Human Rights Act 1998 has reinforced this way of thinking, but the law actually dates back to the Contempt of Court Act of 1981. It is Section 10 of this Act that says: "No court may require a person to disclose, nor is any person guilty of contempt of court for refusing to disclose, the source of information contained in a publication for which he is responsible, unless it be established to the satisfaction of the court that disclosure is necessary in the interests of justice or national security or for the prevention of disorder or crime"

In practice, the protection offered has not been as effective as it sounds, and journalists who have given guarantees to their sources often find themselves in a terrible dilemma – betray them or potentially face a prison sentence for contempt. In 1989, Bill Goodwin, a young journalist on Engineer magazine began a seven year legal battle to protect his source from Tetra Business Systems. And only last year, Steve Panter of the Manchester Evening News, refused to comply with a court order to expose his alleged contact from the local police force who was supposed to have given him the name of the prime suspect in Manchester’s IRA bombing.

The employer’s attitude is obviously rather different. The leak may be a continuing threat to commercially confidential information, or the information given out might be inaccurate. Either way, the mischief has to be stopped. If caught in time, action can be taken to restrain publication by injunction. In the same proceedings, an application can then be made to force the journalist to identify the source. If publication has already taken place, the employer may still want to find the disloyal member of staff. To that end, they might be able to make a Norwich Pharmacal application, so called after the case in which an order was first made for disclosure of a source. Such orders can be made against the media or any other third parties who have become involved in some way, innocently or otherwise, even when there are no legal proceedings against them or anyone else, on the basis that they have public duty in such circumstances to help a person who has suffered from a wrongful disclosure.

Whatever road is taken, the same hurdle has to be cleared – the application has to satisfy one of the four exceptions in Section 10. The UK courts have generally taken a broad and employer-friendly view of what is in "the interests of justice" and when disclosure might be "necessary". For instance, the information supplied to Mr Goodwin was thought to have come from a draft of a top-secret corporate plan, and the House of Lords considered that this violation of trust was enough to override the protection of Section 10. The European Court of Human Rights subsequently found differently, concluding that the Lords’ decision breached Article 10 of the Convention – the right of free expression.

In spite of the added weight given since then to the media’s side of this balancing exercise by the incorporation of Article 10 into UK law in 1998, from the media’s point of view the likely outcome has remained dispiritingly similar. In last year’s Interbrew case, the court was asked to order the disclosure of a financial document circulated to the press relating to a merger between Interbrew and South African Breweries. It emerged that the document had been doctored, and the claimant company argued that the intention of the unknown source was not to bring any wrongdoing by the company to the notice of the public but rather to wreck the merger, and that the interests of justice demanded the exposure of the culprit. The media were in no position to dispute what was said – the document had been delivered anonymously to several organisations and they had no idea what the intentions behind its arrival were or even whether the surrender of the document would help to identify the source.

Around the same time, the courts were affirming their decision in the Ashworth Hospital case, in which the Daily Mirror had published extracts from the medical records of child murderer Ian Brady, unlawfully obtained by an employee of the psychiatric hospital where Brady was detained and then sold to a freelance journalist. The House of Lords had no doubt that the low level of public interest in the material published was no counter-weight to the overriding importance of maintaining the confidentiality of medical data, whoever the subject of it might be, especially when the journalist and newspaper receiving the records were far from being innocent bystanders in the breach of law that their acquisition entailed.

For the employer: Where you have suffered from wrongdoing , the law is generally in your favour. But consider that one of the side-effects of aggressive legal action against the media has been to put journalists off checking their sources with you before going to publication, because to do so might invite injunction. In effect, you may have lost the battle even before it has been fought.

For the media: A demonstrably high level of legitimate public interest is required to make Section 10 and Article 10 work in your favour and to keep you out of prison. Although the Attorney-General is usually sympathetic when considering prosecutions for contempt, you would be well advised to keep a toothbrush and a clean shirt packed and ready, just in case.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.