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Giurisprudenza
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European Court of Human Rights
Application no. 16/1994/463/544 |
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Goodwin v. the United Kingdom - 27/03/1996
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In the case of Goodwin v. the United Kingdom (1),
The European Court of Human Rights, sitting, in pursuance of
Rule 51 of Rules of Court A (2), as a Grand Chamber composed of the
following judges:
Mr R. Ryssdal, President,
Mr R. Bernhardt,
Mr Thór Vilhjálmsson,
Mr F. Matscher,
Mr B. Walsh,
Mr C. Russo,
Mr A. Spielmann,
Mr J. De Meyer,
Mr N. Valticos,
Mrs E. Palm,
Mr F. Bigi,
Sir John Freeland,
Mr A.B. Baka,
Mr D. Gotchev,
Mr B. Repik,
Mr P. Jambrek,
Mr P. Kuris,
Mr U. Lohmus,
and also of Mr H. Petzold, Registrar, and Mr P.J. Mahoney, Deputy
Registrar,
Having deliberated in private on 30 September 1995 and
22 February 1996,
Delivers the following judgment, which was adopted on the
last-mentioned date:
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Notes by the Registrar
1. The case is numbered 16/1994/463/544. The first number is the
case's position on the list of cases referred to the Court in the
relevant year (second number). The last two numbers indicate the
case's position on the list of cases referred to the Court since its
creation and on the list of corresponding originating applications to
the Commission.
2. Rules A apply to all cases referred to the Court before the entry
into force of Protocol No. 9 (P9) and thereafter only to cases
concerning States not bound by that Protocol (P9). They correspond to
the Rules that came into force on 1 January 1983, as amended several
times subsequently.
_______________
PROCEDURE
1. The case was referred to the Court by the European Commission
of Human Rights ("the Commission") on 20 May 1994, within the
three-month period laid down by Article 32 para. 1 (art. 32-1) and
Article 47 (art. 47) of the Convention for the Protection of Human
Rights and Fundamental Freedoms ("the Convention"). It originated in
application (no. 17488/90) against the United Kingdom of Great Britain
and Northern Ireland lodged with the Commission under Article 25
(art. 25) by Mr William Goodwin, a British citizen, on
27 September 1990.
The Commission's request referred to Articles 44 and 48
(art. 44, art. 48) and to the declaration whereby the United Kingdom
recognised the compulsory jurisdiction of the Court (Article 46)
(art. 46). The object of the request was to obtain a decision as to
whether the facts of the case disclosed a breach by the respondent
State of its obligations under Article 10 (art. 10) of the Convention.
2. In response to the enquiry made in accordance with
Rule 33 para. 3 (d) of Rules of Court A, the applicant stated that he
wished to take part in the proceedings and designated the lawyers who
would represent him (Rule 30).
3. The Chamber to be constituted included ex officio Sir John
Freeland, the elected judge of British nationality (Article 43 of the
Convention) (art. 43), and Mr R. Ryssdal, the President of the Court
(Rule 21 para. 3 (b)). On 28 May 1994, in the presence of the
Registrar, the President drew by lot the names of the other seven
members, namely Mr Thór Vilhjálmsson, Mr B. Walsh, Mr C. Russo, Mr J.
De Meyer, Mrs E. Palm, Mr A.B. Baka and Mr B. Repik (Article 43 in fine
of the Convention and Rule 21 para. 4) (art. 43).
4. As President of the Chamber (Rule 21 para. 5), Mr Ryssdal,
acting through the Registrar, consulted the Agent of the United Kingdom
Government ("the Government"), the applicant's lawyers and the Delegate
of the Commission on the organisation of the proceedings
(Rules 37 para. 1 and 38). Pursuant to the orders made in consequence,
the Registrar received the Government's memorial on 3 February 1995 and
the applicant's memorial on 1 March. On 19 April 1995 the Secretary
to the Commission indicated that the Delegate did not wish to reply in
writing.
On various dates between 12 April and 7 September 1995 the
Registrar received from the Government and the applicant observations
on his Article 50 (art. 50) claim.
5. On 24 February 1995 the President, having consulted the
Chamber, granted leave to Article 19 and Interights, two London based
non-governmental human rights organisations, to submit observations on
national law in the area in question in the present case, as applicable
in certain countries (Rule 37 para. 2). Their comments were filed on
10 March 1995.
6. In accordance with the President's decision, the hearing took
place in public in the Human Rights Building, Strasbourg, on
24 April 1995. The Court had held a preparatory meeting beforehand.
There appeared before the Court:
(a) for the Government
Mr I. Christie, Foreign and Commonwealth Office, Agent,
Mr M. Baker, QC, Counsel,
Mr M. Collon, Lord Chancellor's Department, Adviser;
(b) for the Commission
Mrs G.H. Thune, Delegate;
(c) for the applicant
Mr G. Robertson QC, Counsel,
Mr G. Bindman, Solicitor,
Mr R.D. Sack, Attorney,
Ms A.K. Hilker, Attorney,
Ms L. Moore, Attorney,
Mr J. Mortimer QC, Advisers.
The Court heard addresses by Mrs Thune, Mr Robertson and
Mr Baker and also replies to a question put by one of its members
individually.
7. Following deliberations on 27 April 1995 the Chamber decided
to relinquish jurisdiction forthwith in favour of a Grand Chamber
(Rule 51 para. 1).
8. The Grand Chamber to be constituted included ex officio
Mr Ryssdal, President of the Court, Mr R. Bernhardt, Vice-President of
the Court, and the other members of the Chamber which had relinquished
jurisdiction (Rule 51 para. 2 (a) and (b)). On 5 May 1995, in the
presence of the Registrar, the President drew by lot the names of the
nine additional judges called on to complete the Grand Chamber, namely
Mr F. Matscher, Mr A. Spielmann, Mr N. Valticos, Mr R. Pekkanen,
Mr F. Bigi, Mr D. Gotchev, Mr P. Jambrek, Mr P. Kuris and Mr U. Lohmus
(Rule 51 para. 2 (c)). Mr Pekkanen subsequently withdrew, being unable
to take part in the further consideration of the case (Rule 24 para. 1
in conjunction with Rule 51 para. 6).
9. Having taken note of the opinions of the Agent of the
Government, the Delegate of the Commission and the applicant, the Grand
Chamber decided on 4 September 1995 that it was not necessary to hold
a further hearing following the relinquishment of jurisdiction by the
Chamber (Rules 26 and 38, taken together with Rule 51 para. 6).
AS TO THE FACTS
I. Particular circumstances of the case
10. Mr William Goodwin, a British national, is a journalist and
lives in London.
11. On 3 August 1989 the applicant joined the staff of The
Engineer, published by Morgan-Grampian (Publishers) Ltd ("the
publishers"), as a trainee journalist. He was employed by Morgan
Grampian PLC ("the employer").
On 2 November 1989 the applicant was telephoned by a person
who, according to the applicant, had previously supplied him with
information on the activities of various companies. The source gave
him information about Tetra Ltd ("Tetra"), to the effect that the
company was in the process of raising a £5 million loan and had
financial problems as a result of an expected loss of £2.1 million
for 1989 on a turnover of £20.3 million. The information was
unsolicited and was not given in exchange for any payment. It was
provided on an unattributable basis. The applicant maintained that he
had no reason to believe that the information derived from a stolen or
confidential document. On 6 and 7 November 1989, intending to write
an article about Tetra, he telephoned the company to check the facts
and seek its comments on the information.
The information derived from a draft of Tetra's confidential
corporate plan. On 1 November 1989 there had been eight numbered
copies of the most recent draft. Five had been in the possession of
senior employees of Tetra, one with its accountants, one with a bank
and one with an outside consultant. Each had been in a ring binder and
was marked "Strictly Confidential". The accountants' file had last
been seen at about 3 p.m. on 1 November in a room they had been using
at Tetra's premises. The room had been left unattended between 3 p.m.
and 4 p.m. and during that period the file had disappeared.
A. Injunction and orders for disclosure of sources and documents
12. On 7 November 1989 Mr Justice Hoffmann of the High Court of
Justice (Chancery Division) granted an application by Tetra of the same
date for an ex parte interim injunction restraining the publishers of
The Engineer from publishing any information derived from the corporate
plan. The company informed all the national newspapers and relevant
journals of the injunction on 16 November.
13. In an affidavit to the High Court dated 8 November 1989, Tetra
stated that if the plan were to be made public it could result in a
complete loss of confidence in the company on the part of its actual
and potential creditors, its customers and in particular its suppliers,
with a risk of loss of orders and of a refusal to supply the company
with goods and services. This would inevitably lead to problems with
Tetra's refinancing negotiations. If the company went into
liquidation, there would be approximately four hundred redundancies.
14. On 14 November 1989 Mr Justice Hoffmann, on an application by
Tetra, ordered the publishers, under section 10 of the Contempt of
Court Act 1981 ("the 1981 Act"; see paragraph 20 below), to disclose
by 3 p.m. on 15 November the applicant's notes from the above telephone
conversation identifying his source. On the latter date, the
publishers having failed to comply with the order, Mr Justice Hoffmann
granted Tetra leave to join the applicant's employer and the applicant
himself to the proceedings and gave the defendants until 3 p.m. on the
following day to produce the notes.
On 17 November 1989 the High Court made a further order to the
effect that the applicant represented all persons who had received the
plan or information derived from it without authority and that such
persons should deliver up any copies of the plan in their possession.
The motion was then adjourned for the applicant to bring this order to
the attention of his source. However, the applicant declined to do so.
15. On 22 November 1989 Mr Justice Hoffmann ordered the applicant
to disclose by 3 p.m. on 23 November his notes on the grounds that it
was necessary "in the interests of justice", within the meaning of
section 10 of the 1981 Act (see paragraph 20 below), for the source's
identity to be disclosed in order to enable Tetra to bring proceedings
against the source to recover the document, obtain an injunction
preventing further publication or seek damages for the expenses to
which it had been put. The judge concluded:
"There is strong prima facie evidence that it has suffered a
serious wrong by the theft of its confidential file. There
is similar evidence that it would suffer serious commercial
damage from the publication of the information in the file
during the near future. It is true that the source may not
be the person who stole the file. He may have had the
information second hand, although this is less likely. In
either case, however, he was trying to secure damaging
publication of information which he must have known to be
sensitive and confidential. According to the respondent,
having given him the information he telephoned again a few
days later to ask how the article was getting on. The
plaintiff wishes to bring proceedings against the source for
recovery of the document, an injunction against further
publication and damages for the expense to which it has been
put. But it cannot obtain any of those remedies because it
does not know whom to sue. In the circumstance of this case,
in which a remedy against the source is urgently needed, I
think that disclosure is necessary in the interests of
justice.
... There is no doubt on the evidence that the respondent was
an innocent recipient of the information but the Norwich
Pharmacal case shows that this does not matter. The question
is whether he had become mixed up in the wrongdoing ...
The respondent has sworn an affidavit expressing the view
that the public interest requires publication of the
plaintiff's confidential commercial information. Counsel for
the respondent says that the plaintiff's previous published
results showed it as a prosperous expanding company and
therefore the public was entitled to know that it was now
experiencing difficulties. I reject this submission. There
is nothing to suggest that the information in the draft
business plan falsifies anything which has been previously
made public or that the plaintiff was under any obligation,
whether in law or commercial morality, to make that
information available to its customers, suppliers and
competitors. On the contrary, it seems to me that business
could not function properly if such information could not be
kept confidential."
16. On the same date the Court of Appeal rejected an application
by the applicant for a stay of execution of the High Court's order, but
substituted an order requiring the applicant either to disclose his
notes to Tetra or to deliver them to the Court of Appeal in a sealed
envelope with accompanying affidavit. The applicant did not comply
with this order.
B. Appeals to the Court of Appeal and to the House of Lords
17. On 23 November 1989 the applicant lodged an appeal with the
Court of Appeal from Mr Justice Hoffmann's order of 22 November 1989.
He argued that disclosure of his notes was not "necessary in the
interests of justice" within the meaning of section 10 of the 1981 Act;
the public interest in publication outweighed the interest in
preserving confidentiality; and, since he had not facilitated any
breach of confidence, the disclosure order against him was invalid.
The Court of Appeal dismissed the appeal on 12 December 1989.
Lord Donaldson held:
"The existence of someone with access to highly confidential
information belonging to the plaintiffs who was prepared to
break his obligations of confidentiality in this way was a
permanent threat to the plaintiffs which could only be
eliminated by discovering his identity. The injunctions
would no doubt be effective to prevent publication in the
press, but they certainly would not effectively prevent
publication to the plaintiffs' customers or competitors.
...
... I am loath in a judgment given in open court to give a
detailed explanation of why this is a case in which, if the
full facts were known and the courts had to say that they
could give the plaintiffs no assistance, there would, I
think, be a significant lessening in public confidence in the
administration of justice generally. Suffice it to say that
the plaintiffs are a, and perhaps the, leader in their very
important field, which I deliberately do not identify, with
national and international customers and competitors. They
are faced with a situation which is in part the result of
their own success. They have reached a point at which they
have to refinance and expand or go under with the loss not
only of money, but of a significant number of jobs. This is
not the situation in which the court should be or be seen to
be impotent in the absence of compelling reasons. The
plaintiffs are continuing with their refinancing discussions
menaced by the source (or the source's source) ticking away
beneath them like a time bomb. Prima facie they are entitled
to assistance in identifying, locating and defusing it.
That I should have concluded that the disclosure of
Mr Goodwin's source is necessary in the interests of justice
is not determinative of this appeal. It does, however, mean
that I have to undertake a balancing exercise. On the one
hand there is the general public interest in maintaining the
confidentiality of journalistic sources, which is the reason
why section 10 was enacted. On the other is, in my judgment,
a particular case in which disclosure is necessary in the
general interests of the administration of justice. If these
two factors stood alone, the case for ordering disclosure
would be made out, because the parliamentary intention must
be that, other things being equal, the necessity for
disclosure on any of the four grounds should prevail. Were
it otherwise, there would be no point in having these
doorways.
But other things would not be equal if, on the particular
facts of the case, there was some additional reason for
maintaining the confidentiality of a journalistic source. It
might, for example, have been the case that the information
disclosed what, on the authorities, is quaintly called
`iniquity'. Or the plaintiffs might have been a public
company whose shareholders were unjustifiably being kept in
ignorance of information vital to their making a sensible
decision on whether or not to sell their shares. Such a
feature would erode the public interest in maintaining the
confidentiality of the leaked information and correspondingly
enhance the public interest in maintaining the
confidentiality of journalistic sources. Equally, on
particular facts such as that the identification of the
source was necessary in order to support or refute a defence
of alibi in a major criminal trial, the necessity for
disclosure `in the interests of justice' might be enhanced
and overreach the threshold of the statutory doorway
requiring some vastly increased need for the protection of
the source if it was to be counterbalanced. Once the
[plaintiffs] can get through a doorway, the balancing
exercise comes into play.
On the facts of this case, nothing is to be added to either
side of the equation. The test of the needs of justice is
met, but not in superabundance. The general public interest
in maintaining the confidentiality of journalistic sources
exists, but the facts of this particular case add absolutely
nothing to it. No `iniquity' has been shown. No
shareholders have been kept in the dark. Indeed the public
has no legitimate interest in the business of the plaintiffs
who, although corporate in form, are in truth to be
categorised as private individuals. This is in reality a
piece of wholly unjustified intrusion into privacy.
Accordingly, I am left in no doubt that, notwithstanding the
general need to protect journalistic sources, this is a case
in which the balance comes down in favour of disclosure. I
would dismiss the companies' appeals. I can see no reason in
justice for doing otherwise with regard to Mr Goodwin's
appeals."
Lord Justice McCowan stated that the applicant must have been
"amazingly naïve" if it had not occurred to him that the source had
been at the very least guilty of breach of confidence.
The Court of Appeal granted the applicant leave to appeal to
the House of Lords.
18. The House of Lords upheld the Court of Appeal's decision on
4 April 1990, applying the principle expounded by Lord Reid in Norwich
Pharmacal Co. v. Customs and Excise Commissioners [1974] Appeal Cases
133, a previous leading case:
"if through no fault of his own a person gets mixed up in the
tortious acts of others so as to facilitate their wrongdoing
he may incur no personal liability but he comes under a duty
to assist the person who has been wronged by giving him full
information and disclosing the identity of the wrongdoers."
Lord Bridge, in the first of the five separate speeches given
in the applicant's case, underlined that in applying section 10 it was
necessary to carry out a balancing exercise between the need to protect
sources and, inter alia, the "interests of justice". He referred to
a number of other cases in relation to how the balancing exercise
should be conducted (in particular Secretary of State for Defence
v. Guardian Newspapers Ltd [1985] Appeal Cases 339) and continued:
"... the question whether disclosure is necessary in the
interests of justice gives rise to a more difficult problem
of weighing one public interest against another. A question
arising under this part of section 10 has not previously come
before your Lordships' House for decision. In discussing the
section generally Lord Diplock said in Secretary of State for
Defence v. Guardian Newspapers Ltd [1985] Appeal Cases 339,
350:
`The exceptions include no reference to "the public interest"
generally and I would add that in my view the expression
"justice", the interests of which are entitled to protection,
is not used in a general sense as the antonym of "injustice"
but in the technical sense of the administration of justice
in the course of legal proceedings in a court of law, or, by
reason of the extended definition of "court" in section 19 of
the Act of 1981 before a tribunal or body exercising the
judicial power of the state.'
I agree entirely with the first half of this dictum. To
construe `justice' as the antonym of `injustice' in
section 10 would be far too wide. But to confine it to the
`technical sense of the administration of justice in the
course of legal proceedings in a court of law' seems to me,
with all respect due to any dictum of the late Lord Diplock,
to be too narrow. It is, in my opinion, `in the interests of
justice', in the sense in which this phrase is used in
section 10, that persons should be enabled to exercise
important legal rights and to protect themselves from serious
legal wrongs whether or not resort to legal proceedings in a
court of law will be necessary to attain these objectives.
Thus, to take a very obvious example, if an employer of a
large staff is suffering grave damage from the activities of
an unidentified disloyal servant, it is undoubtedly in the
interests of justice that he should be able to identify him
in order to terminate his contract of employment,
notwithstanding that no legal proceedings may be necessary to
achieve that end.
Construing the phrase `in the interests of justice' in this
sense immediately emphasises the importance of the balancing
exercise. It will not be sufficient, per se, for a party
seeking disclosure of a source protected by section 10 to
show merely that he will be unable without disclosure to
exercise the legal right or avert the threatened legal wrong
on which he bases his claim in order to establish the
necessity of disclosure. The judge's task will always be to
weigh in the scales the importance of enabling the ends of
justice to be attained in the circumstances of the particular
case on the one hand against the importance of protecting the
source on the other hand. In this balancing exercise it is
only if the judge is satisfied that disclosure in the
interests of justice is of such preponderating importance as
to override the statutory privilege against disclosure that
the threshold of necessity will be reached.
Whether the necessity of disclosure in this sense is
established is certainly a question of fact rather than an
issue calling for the exercise of the judge's discretion,
but, like many other questions of fact, such as the question
of whether somebody has acted reasonably in given
circumstances, it will call for the exercise of a
discriminating and sometimes difficult value judgment. In
estimating the weight to be attached to the importance of
disclosure in pursuance of the policy which underlies
section 10 on the other hand, many factors will be relevant
on both sides of the scale.
It would be foolish to attempt to give a comprehensive
guidance as to how the balancing exercise should be carried
out. But it may not be out of place to indicate the kind of
factors which will require consideration. In estimating the
importance to be given to the case in favour of disclosure
there will be a wide spectrum within which the particular
case must be located. If the party seeking disclosure shows,
for example, that his very livelihood depends upon it, this
will put the case near one end of the spectrum. If he shows
no more than that what he seeks to protect is a minor
interest in property, this will put the case at or near the
other end. On the other side the importance of protecting a
source from disclosure in pursuance of the policy underlying
the statute will also vary within a spectrum. One important
factor will be the nature of the information obtained from
the source. The greater the legitimate interest in the
information which the source has given to the publisher or
intended publisher, the greater will be the importance of
protecting the source. But another and perhaps more
significant factor which will very much affect the importance
of protecting the source will be the manner in which the
information was itself obtained by the source. If it appears
to the court that the information was obtained legitimately
this will enhance the importance of protecting the source.
Conversely, if it appears that the information was obtained
illegally, this will diminish the importance of protecting
the source unless, of course, this factor is counterbalanced
by a clear public interest in publication of the information,
as in the classic case where the source has acted for the
purpose of exposing iniquity. I draw attention to these
considerations by way of illustration only and I emphasise
once again that they are in no way intended to be read as a
code ...
In the circumstances of the instant case, I have no doubt
that [the High Court] and the Court of Appeal were right in
finding that the necessity for disclosure of Mr Goodwin's
notes in the interests of justice was established. The
importance to the plaintiffs of obtaining disclosure lies in
the threat of severe damage to their business, and
consequentially to the livelihood of their employees, which
would arise from disclosure of the information contained in
their corporate plan while their refinancing negotiations are
still continuing. This threat ... can only be defused if
they can identify the source either as himself the thief of
the stolen copy of the plan or as a means to lead to the
identification of the thief and thus put themselves in a
position to institute proceedings for the recovery of the
missing document. The importance of protecting the source on
the other hand is much diminished by the source's complicity,
at the very least, in a gross breach of confidentiality which
is not counterbalanced by any legitimate interest which
publication of the information was calculated to serve.
Disclosure in the interests of justice is, on this view of
the balance, clearly of preponderating importance so as to
override the policy underlying the statutory protection of
sources and the test of necessity for disclosure is satisfied
..."
Lord Templeman added that the applicant should have
"recognised that [the information] was both confidential and damaging".
C. Fine for contempt of court
19. In the meantime, on 23 November 1989, the applicant had been
served with a motion seeking his committal for contempt of court, an
offence which was punishable by an unlimited fine or up to two years'
imprisonment (section 14 of the 1981 Act). On 24 November, at a
hearing in the High Court, counsel for the applicant had conceded that
he had been in contempt but the motion was adjourned pending the
appeal.
Following the House of Lord's dismissal of the appeal, the
High Court, on 10 April 1990, fined the applicant £5,000 for contempt
of court.
II. Relevant domestic law
20. Section 10 of the Contempt of Court Act 1981 provides:
"No court may require a person to disclose, nor is a person
guilty of contempt of court for refusing to disclose the
source of information contained in the 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."
21. Section 14 (1) reads:
"In any case where a court has power to commit a person to
prison for contempt of court and (apart from this provision)
no limitation applies to the period of committal, the
committal shall (without prejudice to the power of the court
to order his earlier discharge) be for a fixed term, and that
term shall not on any occasion exceed two years in the case
of committal by a superior court, or one month in the case of
committal by an inferior court."
22. In Secretary of State for Defence v. Guardian Newspapers Lord
Diplock considered the expression "interests of justice" in section 10
of the 1981 Act:
"The exceptions include no reference to the 'public interest'
generally and I would add that in my view the expression
'justice', the interests of which are entitled to protection,
is not used in a general sense as the antonym of 'injustice'
but in a technical sense of the administration of justice in
the course of legal proceedings in a court of law ...
[The expression `interests of justice'] ... refers to the
administration of justice in particular legal proceedings
already in existence or, in the type of `bill of discovery'
case ... exemplified by the Norwich Pharmacal Co. v. Customs
and Excise Commissioners ... a particular civil action which
it is proposed to bring against a wrongdoer whose identity
has not yet been ascertained. I find it difficult to
envisage a civil action in which section 10 of the [1981] Act
would be relevant other than one of defamation or for
detention of goods where the goods, as in the instant case
and in British Steel Corporation v. Granada Television ...
consist of or include documents that have been supplied to
the media in breach of confidence."
PROCEEDINGS BEFORE THE COMMISSION
23. In his application (no. 17488/90) of 27 September 1990 to the
Commission, the applicant complained that the imposition of a
disclosure order requiring him to reveal the identity of a source
violated his right to freedom of expression under Article 10 (art. 10)
of the Convention.
24. The Commission declared the application admissible on
7 September 1993. In its report of 1 March 1994 (Article 31)
(art. 31), the Commission expressed the opinion that there had been a
violation of Article 10 (art. 10) (by eleven votes to six). The full
text of the Commission's opinion and of the dissenting opinion
contained in the report is reproduced as an annex to this judgment.
_______________
Note by the Registrar
1. For practical reasons this annex will appear only with the printed
version of the judgment (Reports 1996-II), but a copy of the
Commission's report is obtainable from the Registry.
_______________
FINAL SUBMISSIONS MADE TO THE COURT
25. At the hearing on 24 April 1995 the Government, as they had
done in their memorial, invited the Court to hold that there had been
no violation of Article 10 (art. 10) of the Convention.
26. On the same occasion the applicant reiterated his request to
the Court, stated in his memorial, to find that there had been a breach
of Article 10 (art. 10) and to award him just satisfaction under
Article 50 (art. 50) of the Convention.
AS TO THE LAW
I. ALLEGED VIOLATION OF ARTICLE 10 (art. 10) OF THE CONVENTION
27. The applicant alleged that the disclosure order requiring him
to reveal the identity of his source and the fine imposed upon him for
having refused to do so constituted a violation of Article 10 (art. 10)
of the Convention, which reads:
"1. Everyone has the right to freedom of expression. This
right shall include freedom to hold opinions and to receive
and impart information and ideas without interference by
public authority and regardless of frontiers. This
Article (art. 10) shall not prevent States from requiring the
licensing of broadcasting, television or cinema enterprises.
2. The exercise of these freedoms, since it carries with it
duties and responsibilities, may be subject to such
formalities, conditions, restrictions or penalties as are
prescribed by law and are necessary in a democratic society,
in the interests of national security, territorial integrity
or public safety, for the prevention of disorder or crime,
for the protection of health or morals, for the protection of
the reputation or rights of others, for preventing the
disclosure of information received in confidence, or for
maintaining the authority and impartiality of the judiciary."
28. It was undisputed that the measures constituted an
interference with the applicant's right to freedom of expression as
guaranteed by paragraph 1 of Article 10 (art. 10-1) and the Court sees
no reason to hold otherwise. It must therefore examine whether the
interference was justified under paragraph 2 of Article 10 (art. 10-2).
A. Was the interference "prescribed by law"?
29. The Court observes that, and this was not disputed, the
impugned disclosure order and the fine had a basis in national law,
namely sections 10 and 14 of the 1981 Act (see paragraphs 20 and 21
above). On the other hand, the applicant maintained that as far as the
disclosure order was concerned the relevant national law failed to
satisfy the foreseeability requirement which flows from the expression
"prescribed by law".
30. The Government contested this allegation whereas the
Commission did not find it necessary to reach a conclusion on this
point.
31. The Court reiterates that, according to its case-law, the
relevant national law must be formulated with sufficient precision to
enable the persons concerned - if need be with appropriate legal advice
- to foresee, to a degree that is reasonable in the circumstances, the
consequences which a given action may entail. A law that confers a
discretion is not in itself inconsistent with this requirement,
provided that the scope of the discretion and the manner of its
exercise are indicated with sufficient clarity, having regard to the
legitimate aim in question, to give the individual adequate protection
against arbitrary interference (see, for instance, the Tolstoy
Miloslavsky v. the United Kingdom judgment of 13 July 1995, Series A
no. 316-B, pp. 71-72, para. 37).
32. The applicant argued that the interests-of-justice exception
to the protection of sources under section 10 of the 1981 Act was not
sufficiently precise to enable journalists to foresee the circumstances
in which such an order could be made against them in order to protect
a private company. By applying this provision to the present case,
Lord Bridge had completely revised the interpretation given by Lord
Diplock in Secretary of State for Defence v. Guardian Newspapers. The
balancing exercise introduced by Lord Bridge amounted to subjective
judicial assessment of factors based on retrospective evidence
presented by the party seeking to discover the identity of the source
(see paragraph 18 above). At the time the source provided the
information, the journalist could not possibly know whether the party's
livelihood depended upon such discovery and could not assess with any
degree of certainty the public interest in the information. A
journalist would usually be in a position to judge whether the
information was acquired by legitimate means or not, but would not be
able to predict how the courts would view the matter. The law, as it
stood, was no more than a mandate to the judiciary to order journalists
to disclose sources if they were "moved" by the complaint of an
aggrieved party.
33. The Court recognises that in the area under consideration it
may be difficult to frame laws with absolute precision and that a
certain degree of flexibility may even be desirable to enable the
national courts to develop the law in the light of their assessment of
what measures are necessary in the interests of justice.
Contrary to what is suggested by the applicant, the relevant
law did not confer an unlimited discretion on the English courts in
determining whether an order for disclosure should be made in the
interests of justice. Important limitations followed in the first place
from the terms of section 10 of the 1981 Act, according to which an
order for disclosure could be made if it was "established to the
satisfaction of the court that disclosure [was] necessary in the
interests of justice" (see paragraph 20 above).
In addition, at the material time, that is when the applicant
received the information from his source, there existed not only an
interpretation by Lord Diplock of the interests-of-justice provision
in section 10 in the case of Secretary of State for Defence v. Guardian
Newspapers but also a ruling by Lord Reid in Norwich Pharmacal Co.
v. Customs and Excise Commissioners (1973), to the effect that a person
who through no fault of his own gets mixed up in wrongdoing may come
under a duty to disclose the identity of the wrongdoer (see
paragraphs 15, 18 and 22 above).
In the Court's view the interpretation of the relevant law
made by the House of Lords in the applicant's case did not go beyond
what could be reasonably foreseen in the circumstances (see, mutatis
mutandis, the recent S.W. v. the United Kingdom judgment of
22 November 1995, Series A no. 335-B, p. 42, para. 36). Nor does it
find any other indication that the law in question did not afford the
applicant adequate protection against arbitrary interference.
34. Accordingly, the Court concludes that the impugned measures
were "prescribed by law".
B. Did the interference pursue a legitimate aim?
35. It was not disputed before the Convention institutions that
the aim of the impugned measures was to protect Tetra's rights and that
the interference thus pursued a legitimate aim. The Government
maintained that the measures were also taken for the prevention of
crime.
36. The Court, being satisfied that the interference pursued the
first of these aims, does not find it necessary to determine whether
it also pursued the second.
C. Was the interference "necessary in a democratic society"?
37. The applicant and the Commission were of the opinion that
Article 10 (art. 10) of the Convention required that any compulsion
imposed on a journalist to reveal his source had to be limited to
exceptional circumstances where vital public or individual interests
were at stake. This test was not satisfied in the present case. The
applicant and the Commission invoked the fact that Tetra had already
obtained an injunction restraining publication (see paragraph 12
above), and that no breach of that injunction had occurred. Since the
information in question was of a type commonly found in the business
press, they did not consider that the risk of damage that further
publication could cause was substantiated by Tetra, which had suffered
none of the harm adverted to.
The applicant added that the information was newsworthy even
though it did not reveal matters of vital public interest, such as
crime or malfeasance. The information about Tetra's mismanagement,
losses and loan-seeking activities was factual, topical and of direct
interest to customers and investors in the market for computer
software. In any event, the degree of public interest in the
information could not be a test of whether there was a pressing social
need to order the source's disclosure. A source may provide
information of little value one day and of great value the next; what
mattered was that the relationship between the journalist and the
source was generating the kind of information which had legitimate news
potential. This was not to deny Tetra's entitlement to keep its
operations secret, if it could, but to contest that there was a
pressing social need for punishing the applicant for refusing to
disclose the source of the information which Tetra had been unable to
keep secret.
38. The Government contended that the disclosure order was
necessary in a democratic society for the protection of "the rights"
of Tetra. The function of the domestic courts was both to ascertain
facts and, in the light of the facts established, to determine the
legal consequences which should flow from them. In the Government's
view, the supervisory jurisdiction of the Convention institutions
extended only to the latter. These limitations on the Convention
review were of importance in the present case, where the national
courts had proceeded on the basis that the applicant had received the
information from his source in ignorance as to its confidential nature,
although, in fact, this was something he ought to have recognised.
Moreover, the source was probably the thief of the confidential
business plan and had improper motives for divulging the information.
In addition, the plaintiffs would suffer serious commercial damage from
further publication of the information. These findings by the domestic
courts were based upon the evidence which was placed before them.
It was further submitted that there was no significant public
interest in the publication of the confidential information received
by the applicant. Although there is a general public interest in the
free flow of information to journalists, both sources and journalists
must recognise that a journalist's express promise of confidentiality
or his implicit undertaking of non-attributability may have to yield
to a greater public interest. The journalist's privilege should not
extend to the protection of a source who has conducted himself mala
fide or, at least, irresponsibly, in order to enable him to pass on,
with impunity, information which has no public importance. The source
in the present case had not exercised the responsibility which was
called for by Article 10 (art. 10) of the Convention. The information
in issue did not possess a public-interest content which justified
interference with the rights of a private company such as Tetra.
Although it was true that effective injunctions had been
obtained, so long as the thief and the source remained untraced, the
plaintiffs were at risk of further dissemination of the information
and, consequently, of damage to their business and to the livelihood
of their employees. There were no other means by which Tetra's
business confidence could have been protected.
In these circumstances, according to the Government, the order
requiring the applicant to divulge his source and the further order
fining him for his refusal to do so did not amount to a breach of the
applicant's rights under Article 10 (art. 10) of the Convention.
39. The Court recalls that freedom of expression constitutes one
of the essential foundations of a democratic society and that the
safeguards to be afforded to the press are of particular importance
(see, as a recent authority, the Jersild v. Denmark judgment of
23 September 1994, Series A no. 298, p. 23, para. 31).
Protection of journalistic sources is one of the basic
conditions for press freedom, as is reflected in the laws and the
professional codes of conduct in a number of Contracting States and is
affirmed in several international instruments on journalistic freedoms
(see, amongst others, the Resolution on Journalistic Freedoms and Human
Rights, adopted at the 4th European Ministerial Conference on Mass
Media Policy (Prague, 7-8 December 1994) and Resolution on the
Confidentiality of Journalists' Sources by the European Parliament,
18 January 1994, Official Journal of the European Communities
No. C 44/34). Without such protection, sources may be deterred from
assisting the press in informing the public on matters of public
interest. As a result the vital public-watchdog role of the press may
be undermined and the ability of the press to provide accurate and
reliable information may be adversely affected. Having regard to the
importance of the protection of journalistic sources for press freedom
in a democratic society and the potentially chilling effect an order
of source disclosure has on the exercise of that freedom, such a
measure cannot be compatible with Article 10 (art. 10) of the
Convention unless it is justified by an overriding requirement in the
public interest.
These considerations are to be taken into account in applying
to the facts of the present case the test of necessity in a democratic
society under paragraph 2 of Article 10 (art. 10-2).
40. As a matter of general principle, the "necessity" for any
restriction on freedom of expression must be convincingly established
(see the Sunday Times v. the United Kingdom (no. 2) judgment of
26 November 1991, Series A no. 217, pp. 28-29, para. 50, for a
statement of the major principles governing the "necessity" test).
Admittedly, it is in the first place for the national authorities to
assess whether there is a "pressing social need" for the restriction
and, in making their assessment, they enjoy a certain margin of
appreciation. In the present context, however, the national margin of
appreciation is circumscribed by the interest of democratic society in
ensuring and maintaining a free press. Similarly, that interest will
weigh heavily in the balance in determining, as must be done under
paragraph 2 of Article 10 (art. 10-2), whether the restriction was
proportionate to the legitimate aim pursued. In sum, limitations on
the confidentiality of journalistic sources call for the most careful
scrutiny by the Court.
The Court's task, in exercising its supervisory function, is
not to take the place of the national authorities but rather to review
under Article 10 (art. 10) the decisions they have taken pursuant to
their power of appreciation. In so doing, the Court must look at the
"interference" complained of in the light of the case as a whole and
determine whether the reasons adduced by the national authorities to
justify it are "relevant and sufficient".
41. In the instant case, as appears from Lord Bridge's speech in
the House of Lords, Tetra was granted an order for source disclosure
primarily on the grounds of the threat of severe damage to their
business, and consequently to the livelihood of their employees, which
would arise from disclosure of the information in their corporate plan
while their refinancing negotiations were still continuing (see
paragraph 18 above). This threat, "ticking away beneath them like a
time bomb", as Lord Donaldson put it in the Court of Appeal (see
paragraph 17 above), could only be defused, Lord Bridge considered, if
they could identify the source either as himself the thief of the
stolen copy of the plan or as a means to lead to identification of the
thief and thus put the company in a position to institute proceedings
for the recovery of the missing document. The importance of protecting
the source, Lord Bridge concluded, was much diminished by the source's
complicity, at the very least, in a gross breach of confidentiality
which was not counterbalanced by any legitimate interest in publication
of the information (see paragraph 18 above).
42. In the Court's view, the justifications for the impugned
disclosure order in the present case have to be seen in the broader
context of the ex parte interim injunction which had earlier been
granted to the company, restraining not only the applicant himself but
also the publishers of The Engineer from publishing any information
derived from the plan. That injunction had been notified to all the
national newspapers and relevant journals (see paragraph 12 above).
The purpose of the disclosure order was to a very large extent the same
as that already being achieved by the injunction, namely to prevent
dissemination of the confidential information contained in the plan.
There was no doubt, according to Lord Donaldson in the Court of Appeal,
that the injunction was effective in stopping dissemination of the
confidential information by the press (see paragraph 17 above).
Tetra's creditors, customers, suppliers and competitors would not
therefore come to learn of the information through the press. A vital
component of the threat of damage to the company had thus already
largely been neutralised by the injunction. This being so, in the
Court's opinion, in so far as the disclosure order merely served to
reinforce the injunction, the additional restriction on freedom of
expression which it entailed was not supported by sufficient reasons
for the purposes of paragraph 2 of Article 10 (art. 10-2) of the
Convention.
43. What remains to be ascertained by the Court is whether the
further purposes served by the disclosure order provided sufficient
justification.
44. In this respect it is true, as Lord Donaldson put it, that the
injunction "would not effectively prevent publication to [Tetra's]
customers or competitors" directly by the applicant journalist's source
(or that source's source) (see paragraph 17 above). Unless aware of
the identity of the source, Tetra would not be in a position to stop
such further dissemination of the contents of the plan, notably by
bringing proceedings against him or her for recovery of the missing
document, for an injunction against further disclosure by him or her
and for compensation for damage.
It also had a legitimate reason as a commercial enterprise in
unmasking a disloyal employee or collaborator, who might have
continuing access to its premises, in order to terminate his or her
association with the company.
45. These are undoubtedly relevant reasons. However, as also
recognised by the national courts, it will not be sufficient, per se,
for a party seeking disclosure of a source to show merely that he or
she will be unable without disclosure to exercise the legal right or
avert the threatened legal wrong on which he or she bases his or her
claim in order to establish the necessity of disclosure (see
paragraph 18 above). In that connection, the Court would recall that
the considerations to be taken into account by the Convention
institutions for their review under paragraph 2 of Article 10
(art. 10-2) tip the balance of competing interests in favour of the
interest of democratic society in securing a free press (see
paragraphs 39 and 40 above). On the facts of the present case, the
Court cannot find that Tetra's interests in eliminating, by proceedings
against the source, the residual threat of damage through dissemination
of the confidential information otherwise than by the press, in
obtaining compensation and in unmasking a disloyal employee or
collaborator were, even if considered cumulatively, sufficient to
outweigh the vital public interest in the protection of the applicant
journalist's source. The Court does not therefore consider that the
further purposes served by the disclosure order, when measured against
the standards imposed by the Convention, amount to an overriding
requirement in the public interest.
46. In sum, there was not, in the Court's view, a reasonable
relationship of proportionality between the legitimate aim pursued by
the disclosure order and the means deployed to achieve that aim. The
restriction which the disclosure order entailed on the applicant
journalist's exercise of his freedom of expression cannot therefore be
regarded as having been necessary in a democratic society, within the
meaning of paragraph 2 of Article 10 (art. 10-2), for the protection
of Tetra's rights under English law, notwithstanding the margin of
appreciation available to the national authorities.
Accordingly, the Court concludes that both the order requiring
the applicant to reveal his source and the fine imposed upon him for
having refused to do so gave rise to a violation of his right to
freedom of expression under Article 10 (art. 10).
II. APPLICATION OF ARTICLE 50 (art. 50) OF THE CONVENTION
47. Mr William Goodwin sought just satisfaction under Article 50
(art. 50) of the Convention, which reads:
"If the Court finds that a decision or a measure taken by a
legal authority or any other authority of a High Contracting
Party is completely or partially in conflict with the
obligations arising from the ... Convention, and if the
internal law of the said Party allows only partial reparation
to be made for the consequences of this decision or measure,
the decision of the Court shall, if necessary, afford just
satisfaction to the injured party."
A. Non-pecuniary damage
48. The applicant claimed 15,000 pounds sterling for non-pecuniary
damage, on account of mental anguish, shock, dismay and anxiety which
he felt as a result of the proceedings against him. For five months
he was in constant peril of being sent to prison, for up to two years,
as a punishment for obeying his conscience and for living up to his
ethical obligations as a journalist. He still has to live with a
criminal record since his crime of contempt of court would not be
expunged by a finding of breach by the Court. He had been the subject
of harassment by court process servers and his employers so as to
comply with a court order against themselves, all of which was added
to the pressure exerted on him by the threat of dismissal if he did not
disclose the identity of his source.
49. The Government objected to the applicant's claim on the ground
that the alleged adverse consequences stemmed from the fact that he was
defying and disobeying the law. Even if he considered it a bad law, he
should have obeyed the order to provide the information to the court
in a sealed envelope, or, at the very least, he should have recognised
his duty to obey the disclosure order when he lost his case in the
House of Lords. Had he done so, the Government would have found it
difficult to resist a claim for compensation for any adverse
consequences.
50. The Court is not persuaded by the Government's arguments.
What matters under Article 50 (art. 50) is whether the facts found to
constitute a violation have resulted in non-pecuniary damage. In the
present case, the Court finds it established that there was a causal
link between the anxiety and distress suffered by the applicant and the
breach found of the Convention. However, in the circumstances of the
case, the Court considers that this finding constitutes adequate just
satisfaction in respect of the damage claimed under this head.
B. Costs and expenses
51. The applicant further sought reimbursement of costs and
expenses totalling £49,500, in respect of the following items specified
in his memorial to the Court of 1 March 1995:
(a) £19,500 for counsel's fees for drafting the application to the
Commission and written observations to the latter and the Court and for
preparing and presenting the case before both the Commission and the
Court;
(b) £30,000 for work by the applicant's solicitors in connection
with the proceedings before the Commission and the Court.
To the above amounts should be added any applicable value
added tax (VAT).
52. The Government, by letter of 11 April 1995, invited the
applicant to provide a detailed breakdown of the costs.
53. In a letter of 25 July 1995 the applicant stated that the
solicitors' work before the Commission and Court amounted to a total
of 136 hours at, on average, £250 per hour for a senior partner and
£150 per hour for an assistant solicitor.
54. On 30 August 1995, the Government submitted their comments on
the breakdown provided by the applicant. Without prejudice to the
Court's decision regarding the belatedness of the applicant's claim,
they stated that they considered that the £19,500 sought in respect of
counsel was unreasonably high and that £16,000 would be reasonable.
As to solicitors' fees, the Government regarded the rates and
the number of hours claimed as excessive. In their view 110 hours at
an average rate of £160 per hour for a senior partner and £100 per hour
for an assistant solicitor would be reasonable.
According to the Government's calculations, it would be
reasonable to indemnify the applicant £37,595.50 (VAT included) for
costs.
55. By letter of 1 September 1995, the applicant stressed that the
number of hours and the hourly rates claimed were reasonable. He
conceded that if the Court found in his favour, it could properly in
its discretion award the amounts indicated by the Government. He
stated that he would be prepared to settle for a total figure midway
between the total figures contended for by the two parties.
56. The Court considers the sum conceded by the Government to be
adequate in the circumstances of the present case. The Court therefore
awards the applicant £37,595,50 (VAT included) for legal costs and
expenses, less the 9,300 French francs already paid in legal aid by the
Council of Europe in respect of legal fees.
C. Default interest
57. According to the information available to the Court, the
statutory rate of interest applicable in the United Kingdom at the date
of adoption of the present judgment is 8% per annum.
FOR THESE REASONS, THE COURT
1. Holds by eleven votes to seven that there has been a
violation of Article 10 (art. 10) of the Convention;
2. Holds unanimously that the finding of a violation constitutes
adequate just satisfaction for the non-pecuniary damage
suffered by the applicant;
3. Holds unanimously:
(a) that the respondent State is to pay to the applicant,
within three months, in respect of costs and expenses
£37,595.50 (thirty seven thousand, five hundred and ninety
five pounds sterling and fifty pence) less 9,300 (nine
thousand, three hundred) French francs to be converted into
pounds sterling at the rate applicable on the date of
delivery of the present judgment;
(b) that simple interest at an annual rate of 8% shall be
payable from the expiry of the above-mentioned three months
until settlement;
4. Dismisses unanimously the remainder of the claim for just
satisfaction.
Done in English and in French, and delivered at a public
hearing in the Human Rights Building, Strasbourg, on 27 March 1996.
Signed: Rolv RYSSDAL
President
Signed: Herbert PETZOLD
Registrar
In accordance with Article 51 para. 2 (art. 51-2) of the
Convention and Rule 53 para. 2 of Rules of Court A, the following
separate opinions are annexed to this judgment:
(a) concurring opinion of Mr De Meyer;
(b) joint dissenting opinion of Mr Ryssdal, Mr Bernhardt,
Mr Thór Vilhjálmsson, Mr Matscher, Mr Walsh, Sir John
Freeland and Mr Baka;
(c) separate dissenting opinion of Mr Walsh.
Initialled: R. R.
Initialled: H. P.
CONCURRING OPINION OF JUDGE DE MEYER
I fully agree with the Court's conclusion that the order
requiring the applicant to reveal his source and the fine imposed upon
him for having refused to do so violated his right to freedom of
expression.
I would however observe that so did also, in my view, the
earlier injunction against publication of the information (1), since
it was an utterly unacceptable form of prior restraint (2).
_______________
1. Paragraphs 12 and 42 of the judgement.
2. See my partly dissenting opinion on that matter in the case of
Observer and Guardian v. the United Kingdom, judgment of
26 November 1991, Series A no. 216, p.46.
_______________
Even if there had not been such an injunction the disclosure
order and the ensuing fine would not have been legitimate. The
protection of a journalist's source is of such a vital importance for
the exercise of his right to freedom of expression that it must, as a
matter of course, never be allowed to be infringed upon, save perhaps
in very exceptional circumstances, which certainly did not exist in the
present case.
JOINT DISSENTING OPINION OF JUDGES RYSSDAL,
BERNHARDT, THÓR VILHJÁLMSSON, MATSCHER,
WALSH, SIR JOHN FREELAND AND BAKA
1. We are unable to agree that, as the majority conclude in
paragraph 46 of the judgment, "both the order requiring the applicant
to reveal his source and the fine imposed upon him for having refused
to do so gave rise to a violation of his right to freedom of expression
under Article 10 (art. 10)".
2. We of course fully accept that, as is recalled in paragraph 39
of the judgment, freedom of expression constitutes one of the essential
foundations of a democratic society and the safeguards to be afforded
to the press are of particular importance. We likewise agree that, as
the paragraph goes on to say, "Protection of journalistic sources is
one of the basic conditions for press freedom ... Without such
protection, sources may be deterred from assisting the press in
informing the public on matters of public interest. As a result the
vital public-watchdog role of the press may be undermined and the
ability of the press to provide accurate and reliable information may
be adversely affected". It follows that an order for source disclosure
cannot be compatible with Article 10 (art. 10) of the Convention unless
it is justified under paragraph 2 of that Article (art. 10-2).
3. Where we part company with the majority is in the assessment
of whether, in the circumstances of the present case, such a
justification existed - whether, in particular, the test of necessity
in a democratic society should be regarded as having been satisfied.
4. As regards the test in domestic law, section 10 of the
Contempt of Court Act 1981 clearly gives statutory force to a
presumption against disclosure of sources. It provides (see
paragraph 20 of the judgment) that no court may require disclosure
"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".
5. As explained by Lord Bridge in the House of Lords in the
applicant's case, this statutory restriction operates unless the party
seeking disclosure can satisfy the court that "disclosure is necessary"
in the interests of one of the four matters of public concern that are
listed in the section. In asking himself the question whether
disclosure of the source of some particular information is necessary
to serve one of the interests in question, the judge has to engage in
a balancing exercise: he must start "with the assumptions, first, that
the protection of sources is itself a matter of high public importance,
secondly, that nothing less than necessity will suffice to override it,
thirdly, that the necessity can only arise out of concern for another
matter of high public importance, being one of the four interests
listed in the section". Dealing with the way in which the judge should
determine necessity where, as here, the relevant interests are those
of justice, Lord Bridge said that it would never be enough for a party
seeking disclosure of a source protected by the section to show merely
that he will be unable without disclosure to exercise a legal right or
avert a threatened legal wrong. "The judge's task will always be to
weigh in the scales the importance of enabling the ends of justice to
be attained in the circumstances of the particular case on the one hand
against the importance of protecting the source on the other hand. In
this balancing exercise it is only if the judge is satisfied that
disclosure in the interests of justice is of such preponderating
importance as to override the statutory privilege against disclosure
that the threshold of necessity will be reached."
6. Given that, as the judgment accepts, the protection of Tetra's
rights by way of the "interests-of-justice" exception amounts to the
pursuit of a legitimate aim under paragraph 2 of Article 10
(art. 10-2), the domestic-law test of necessity strikingly resembles
that required by the Convention. The domestic courts at three levels,
on the basis of all the evidence which was before them, concluded that
disclosure was necessary in the interests of justice. Factors which
Lord Bridge stressed, in support of his conclusion that the judge at
first instance and the Court of Appeal were right in finding that the
necessity for disclosure in the interests of justice was established,
were the following. First, the importance to Tetra of obtaining
disclosure lay in the threat of severe damage to their business, and
consequentially to the livelihood of their employees, which would arise
from disclosure of the information contained in their corporate plan
while their refinancing operations were still continuing. This threat
could only be defused if they could identify the source as himself the
thief of the stolen copy of the plan or as a means to lead to
identification of the thief and thus put themselves in a position to
institute proceedings for the recovery of the missing document.
Secondly, the importance of protecting the source was much diminished
by the source's complicity, at the very least, in a gross breach of
confidentiality which was not counterbalanced by any legitimate
interest which publication of the information was calculated to serve.
In this view of the balance, disclosure in the interests of justice was
clearly of preponderating importance so as to override the policy
underlying the statutory protection of sources and the test of
necessity for disclosure was satisfied.
7. The judgment, on the other hand, concludes that there was not
a reasonable relationship of proportionality between the legitimate aim
pursued by the disclosure order and the means deployed to achieve that
aim (paragraph 46). In reaching this conclusion, the judgment first
says (rightly), in paragraph 42, that the justifications for the
disclosure order have to be seen in the broader context of the
injunction which Tetra had already obtained. That injunction was
effective in stopping dissemination of the confidential information by
the press, so that a "vital component of the threat of damage to the
company had ... already largely been neutralised ...". "This being
so", the paragraph continues "... in so far as the disclosure order
merely served to reinforce the injunction, the additional restriction
on freedom of expression which it entailed was not supported by
sufficient reasons for the purposes of paragraph 2 of Article 10
(art. 10-2) ..".
8. To suggest, however, that the disclosure order may have
"merely served to reinforce the injunction" is to misstate the case.
As the decisions of the domestic courts explain, the purpose of the
disclosure order was to extend the protection of Tetra's rights by
closing gaps left by the injunction. The injunction bit upon the
press, but it would not effectively prevent publication to Tetra's
customers or competitors directly by the applicant's source (or that
source's source). Without knowing the identity of the source, Tetra
would not be in a position to stop further dissemination of the
contents of the plan by bringing proceedings against him for recovery
of the missing document, for an injunction prohibiting further
disclosure by him and for damages. Nor would they be able to remove
any threat of further harm to their interests from a possible disloyal
employee or collaborator who might enjoy continued access to their
premises.
9. These further purposes served by the disclosure order are
considered in paragraphs 44 and 45 of the judgment. The latter
paragraph, after recalling that the considerations to be taken into
account by the Convention institutions for their review under
paragraph 2 of Article 10 (art. 10-2) "tip the balance of competing
interests in favour of the interest of democratic society in securing
a free press", asserts that Tetra's interests in securing the
additional measures of protection sought through the disclosure order
were insufficient to outweigh the vital public interest in the
protection of the applicant's source.
10. No detailed assessment of these interests of Tetra's is,
however, undertaken, and in the absence of it there is no satisfactory
basis for the balancing exercise which the Court is required to
undertake. The domestic courts were, in any event, better placed to
evaluate, on the basis of the evidence before them, the strength of
those interests, and in our view the conclusion which they reached as
to where, in the light of their evaluation, the corresponding balance
should be struck was within the margin of appreciation allowed to the
national authorities.
11. We therefore conclude that neither the disclosure order nor
the fine imposed upon the applicant for his failure to comply with it
gave rise to a violation of his right to freedom of expression under
Article 10 (art. 10).
SEPARATE DISSENTING OPINION OF JUDGE WALSH
1. In his opening address to the Court counsel for the applicant
stated that his client was "claiming no special privilege by virtue of
his profession because journalists are not above the law". Yet it
appears to me that the Court in its decision has decided in effect that
under the Convention a journalist is by virtue of his profession to be
afforded a privilege not available to other persons. Should not the
ordinary citizen writing a letter to the papers for publication be
afforded an equal privilege even though he is not by profession a
journalist? To distinguish between the journalist and the ordinary
citizen must bring into question the provisions of Article 14 (art. 14)
of the Convention.
2. In the present case the applicant did not suffer any denial
of expressing himself. Rather has he refused to speak. In consequence
a litigant seeking the protection of the law for his interests which
were wrongfully injured is left without the remedy the courts had
decided he was entitled to. Such a result is certainly a matter of
public interest and the applicant has succeeded in frustrating his
national courts in their efforts to act in the interests of justice.
It is for the national courts to decide whether or not the document in
question was stolen. Yet the applicant claims that because he does not
believe it was stolen he can justify his refusal to comply with the
court order made in his case. His attitude and his words give the
impression that he would comply if he believed the document in question
had been stolen. He is thus setting up his personal belief as to truth
of a fact which is exclusively within the domain of the national courts
to decide as a justification for not obeying the order of the courts
simply because he does not agree with the judicial findings of fact.
3. It does not appear to me that anything in the Convention
permits a litigant to set up his own belief as to the facts against the
finding of fact made by the competent courts and thereby seek to
justify a refusal to be bound by such judicial finding of fact. To
permit him to do so simply because he is a journalist by profession is
to submit the judicial process to the subjective assessment of one of
the litigants and to surrender to that litigant the sole decision as
to the moral justification for refusing to obey the court order in
consequence of which the other litigant is to be denied justice and to
suffer damage. Thus there is a breach of a primary rule of natural
justice - no man is to be the judge of his own cause.
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