Application No. 17488/90 by William GOODWIN against the United Kingdom
The European Commission of Human Rights sitting in private on 7 September 1993, the following members being present:
MM. C.A. NØRGAARD, President
Mrs. G.H. THUNE
Sir Basil HALL
Mr. M. de SALVIA, Deputy Secretary to the Commission Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 27 September 1990 by William GOODWIN against the United Kingdom and registered on 26 November 1990 under file No. 17488/90;
Having regard to:
Commission;
Commission on 7 September 1993;
Having deliberated;
Decides as follows:
The applicant is a British citizen born in 1966 and resident in London. He is represented before the Commission by Mr. Geoffrey Bindman, a solicitor practising in London.
The facts of the present case, as submitted by the parties and which may be deduced from documents lodged with the application, may be summarised as follows.
The applicant is a journalist. In August 1989, he began working for the publication "The Engineer".
On 2 November 1989, the applicant was telephoned by a source, which gave him information about a company, X Ltd.. The information was unsolicited, was not in exchange for payment and the applicant alleges that he had no reason to believe that the information was derived from a stolen or confidential document. The information was given on an unattributable basis.
On 6 and 7 November 1989, the applicant telephoned X Ltd. to check the facts and seek their comments on the information which he had been given. He prepared a draft article for publication in "The Engineer" 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.
X Ltd. alleged that the information was derived from a draft of its confidential Corporate Plan which had gone missing on 1 November 1989. On 7 November 1989 X Ltd. applied for and obtained an ex parte interim injunction to restrain the publishers of "The Engineer" publishing any information derived from the Corporate Plan.
On 8 November 1989, a writ was issued against the publishers claiming an injunction and a notice of motion was served seeking, inter alia, an order that the publishers disclose the identity of their source.
On 10 November 1989, the publishers submitted their evidence for the motion, including an affidavit by the applicant in which he referred to notes of his conversation with his source.
On 14 November 1989, at the hearing of the motion, X Ltd. obtained an order that the publishers should disclose the applicant's notes, which identified his source, pursuant to Section 10 of the Contempt of Court Act 1981 ("the 1981 Act").
On 15 November 1989, X Ltd. were given leave to join the applicant and his employer to the proceedings. The judge gave all three defendants until 3,00 p.m. on 16 November 1989 to deliver up the notes. He also granted interim injunctions against the two additional defendants, the applicant and his employer.
On 16 November 1989, X Ltd. informed all national newspapers and relevant journals of the injunction.
On 17 November 1989, the High Court made an order that the applicant represented all persons who received the plan or information derived from it without the authority of X Ltd. and that such persons should, inter alia, 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. The applicant declined to do so however.
On 22 November 1989, the applicant was again ordered to disclose his notes: this time by the deadline of 3.00 pm on 23 November 1989. Mr. Justice Hoffman stated that it was necessary "in the interests of justice" for the purposes of Section 10 of the 1981 Act for the source's identity to be disclosed to enable X Ltd. to bring proceedings against the source to recover the document, to obtain an injunction preventing further publication or to seek damages for the expenses to which they had been put. Although the applicant was an innocent recipient of the information, the judge concluded that the source who had telephoned the applicant had probably seen the stolen document and indeed was probably the thief. He was satisfied that there was strong prima facie evidence that X Ltd. had suffered a serious wrong by the theft of its confidential file and that it would suffer serious commercial damage if the information was disclosed. He dismissed the argument of the applicant that it was in the public interest for the information to be disclosed, stating that there was nothing to show that previously published information about the company was false and that there was no legal or moral ground for making the information available to customers, suppliers or competitors.
The applicant applied the same day to the Court of Appeal for a stay. The stay was refused but the Court of Appeal substituted an order that the applicant either disclose his notes to X Ltd. or deliver them to the Court in a sealed envelope with accompanying affidavit. The applicant did not comply with either order by the deadline.
On 23 November 1989, the applicant lodged an appeal against the order of 22 November on the grounds that the disclosure order was not necessary in the interests of justice, and that the public interest in publication outweighed the interest in preserving confidentiality, and that since the applicant had not facilitated the breach of confidence, a disclosure order against him was not valid. The same day, the applicant was served with a notice of motion seeking his committal for contempt.
On 24 November 1989, in a hearing in the High Court it was conceded by the applicant's counsel that he was in contempt. The motion was however adjourned pending the applicant's appeal.
On 29 November 1989, the Court of Appeal began to hear the applicant's appeal. While it heard counsel for the publisher and the applicant's employer, it refused to hear applicant's counsel since the applicant was in continuing contempt.
On 12 December 1989, the Court of Appeal dismissed the appeal against the disclosure order but granted leave to appeal to the House of Lords. Lord Justice McGowan noted that the applicant must have been "amazingly naive" if it did not occur to him that the source was at the very least guilty of a breach of confidence.
The appeal was heard before the House of Lords between 5 and 8 March 1990.
On 4 April 1990, the House of Lords dismissed the appeal. It applied the principle expounded by Lord Reid in a previous leading case and applied in previous cases:
"<The authorities> seem to me to point to a very reasonable principle that if through no fault of his own a person gets mixed up in the tortious acts of others so as to facilitate their wrong-doing 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." (Norwich Pharmacal Co. v. Customs and Excise Commissioners [1974] A.C. 133).
Lord Bridge, in one of the five separate speeches given in the applicant's case, stated:
"Whenever disclosure is sought, as here, of a document which will disclose the identity of a source within the ambit of Section 10, the 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. I think it is indisputable that where a judge asks himself the question: 'Can I be satisfied that disclosure of the source of this information is necessary to serve this interest?' he has to engage in a balancing exercise. He starts 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 ..." He referred to a number of other cases in relation to how the balancing exercise should be conducted (e.g. Secretary of State for Defence v. Guardian Newspapers Ltd [1985] A.C. 339) and continued:
"It would be foolish to attempt to give 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 wide spectrum. One important factor will be the nature of the information obtained from the source. The greater the legitimate public 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 Hoffmann J. 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, accurately described by Lord Donaldson of Lymington M.R. [1990] 2 W.L.R. 421, 439, as 'ticking away beneath them like a time bomb' 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 concurring also commented that the applicant ought to have "recognised that (the information) was both confidential and damaging".
On 10 April 1990, the High Court fined the applicant £5 000 for contempt.
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 prevention of disorder or crime."
The applicant invokes Article 10 para. 1 of the Convention. He submits that the disclosure order made by the High Court and confirmed on appeal constituted an interference with his freedom of expression by a public authority. According to the applicant, the order has a chilling effect on the likelihood of sources communicating information to journalists such as himself, and his right to impart information to the public has also been impaired thereby.
The applicant contends that the disclosure order was not prescribed by law, since it was based on the general law under which an order can be made for the disclosure of the identity of a wrong-doer and the provisions of Section 10 of the 1981 Act. The requirements of foreseeability were not satisfied in these circumstances. Further, while conceding that the order pursued the legitimate aim of protecting the rights of others, namely, X Ltd., the applicant considers that there was no pressing social need for the restraint, since X Ltd. was already protected by the injunction against leakage of confidential information. The restraint was also not proportionate to the aim, since it has cast a disproportionate chilling effect on the free flow of information generally.
The application was introduced on 27 September 1990 and registered on 26 November 1990.
On 7 April 1992, the Commission decided to communicate the application to the respondent Government and to ask for written observations on the admissibility and merits of the application.
The Government's observations were submitted on 18 August 1992 after one extension in the time-limit and the applicant's observations in reply were submitted on 3 December 1992 after two extensions in the time-limit.
On 11 December 1992, the Commission decided to grant legal aid to the applicant.
On 2 April 1993, the Commission decided to invite the parties to make further observations on the admissibility and merits of the application at an oral hearing.
At the hearing, which took place on 7 September 1993, the Government were represented as follows:
Mr. Iain Christie Agent
Mr. Michael Baker QC Counsel
Mr. Oliver Parker Adviser, Lord Chancellor's Department
The applicant was represented as follows:
Mr. Geoffrey Robertson QC Counsel
Mr. Geoffrey Bindman Solicitor
Mr. Robert Sack ) Lawyers from Gibson, Dunn & Crutcher, New Ms. Anne Hilker ) York
The applicant was also present.
The applicant complains that the disclosure order imposed by the High Court constituted an interference with his right to freedom of expression contrary to Article 10 (Art. 10) of the Convention.
Article 10 (Art. 10) of the Convention provides:
"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 authorities and regardless of frontiers...
2The 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."
The applicant submits that the disclosure order made by the High Court and confirmed on appeal constituted an interference with his freedom of expression guaranteed by Article 10 (Art. 10) of the Convention. According to the applicant, the order has a chilling effect on the likelihood of sources communicating information to journalists such as himself, and his right to impart information to the public has also been impaired thereby.
The applicant contends that the disclosure order breached his duty of confidentiality to his source and was not "prescribed by law", since the law permitting such orders is not formulated with sufficient precision to enable the individual to foresee with reasonable certainty when it will be applied. In particular, he argues that the criterion of the "interests of justice" is insufficiently certain and renders impossible the task of a journalist in assessing whether or not he can give a source an undertaking not to reveal his identity. Further, the applicant considers that there was no pressing social need for the restraint, since X Ltd. was already protected by the injunction against publication of confidential information in the press and had made no use of alternative means of identifying the source. The restraint was also not proportionate to the aim, since it included the threat to the applicant of up to two years' imprisonment and has cast a disproportionate chilling effect on the free flow of information to the public generally.
The Government accept that the action of the courts amounted to a restriction on the applicant's freedom of expression within the scope of the first paragraph of Article 10 (Art. 10). The Government submit however that the interference was "prescribed by law" within the meaning of the second paragraph, and refer to domestic case-law as indicating that the relevant principle is well-established, accessible and foreseeable in its application and consequences.
The Government further submit that the interference was "necessary in a democratic society" for the purpose of protecting the rights of others and for preventing the disclosure of information received in confidence. They submit that Section 10 of the 1981 Act gives recognition to the high public importance of protecting the free flow of information to the press and provides a heavy presumption against ordering disclosure. The interest of protecting journalistic sources cannot however outweigh all others and, they argue, in the assessment of whether "the interests of justice" required disclosure in this particular case, the domestic courts gave full and reasoned consideration to all the competing interests. The Government contend that having regard to the margin of appreciation, accorded to Contracting States, there is no ground on which the Commission in its supervisory jurisdiction can substitute its own opinion for that of the courts.
The Commission considers that the applicant's complaints under Article 10 (Art. 10) of the Convention raise complex issues of fact and law, the determination of which should depend on a full examination of the merits. These complaints cannot therefore be regarded as manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention. No other ground for declaring the case inadmissible has been established.
For these reasons, the Commission, by a majority, DECLARES THE APPLICATION ADMISSIBLE without prejudging the merits.
Deputy Secretary to the Commission President of the Commission
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