This is a guest post by Michael Smyth

European Court of Human Rights upholds protection of journalists’ sources
In Financial Times and ors v United Kingdom (Application no 821/03), the European Court of Human Rights (ECtHR) unanimously confirmed the importance of the protection of journalists’ sources as part of the media’s right to freedom of expression.

Five media organisations had been ordered by the High Court in London in 2001 to hand over a document they had each received from an anonymous source. The order was upheld on appeal, so they appealed further to the ECtHR, arguing, among other things, that the order was an interference with their right to freedom of expression under Article 10 of the European Convention on Human Rights. The ECtHR agreed.

There was no real dispute before the ECtHR that the order constituted an interference with the applicants’ Article 10 rights. The issue for the ECtHR was whether it was justified under Article 10(2), and specifically whether it was “necessary in a democratic society”. The ECtHR noted that freedom of expression is one of the essential foundations of a democratic society and that the safeguards guaranteed to the press are particularly important. “Necessity” must be convincingly established, and limitations on the confidentiality of journalistic sources call for the most careful scrutiny by the Court.

The company seeking the High Court order (Interbrew SA) had argued that the order was necessary because the source was acting for a harmful purpose, the document had been altered and was not authentic, the source had to be identified so that the company could bring proceedings against the source to stop further leaks and that handing over a document was not the same as naming a source. The ECtHR disagreed with all of these points. There was no evidence of the source’s purpose and insufficient evidence that the document was not authentic. There were other ways in which the company could have stopped further leaks, which included injunction proceedings against the press to stop the publication of confidential information. The judges also held that giving up a document was not that different from naming a person, because “a chilling effect will arise wherever journalists are seen to assist in the identification of anonymous sources.”

The ECtHR therefore found that the company’s interests in eliminating, by proceedings against the source, the threat of damage from future dissemination of confidential information and in obtaining damages for past breaches of confidence were insufficient to outweigh the public interest in the protection of journalists’ sources. The decision means that the protection of sources should only be removed on public interest grounds where very clear evidence of necessity exists, and it did not in this case.

Our media law is about more than libel. Ironically enough, source protection has for many years been more highly valued by the courts here than in many countries, including the US. The additional support given it by the judges at Strasbourg is, for all that, both timely and welcome.

Michael Smyth is a partner at international law firm Clifford Chance LLP. He acted for the successful media companies at Strasbourg. He also sits on Index on Censorship’s Advisory Board