'Independent' fights to keep news source secret

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The Independent Online

The House of Lords is to be asked by The Independent to overturn a ruling that lawyers described yesterday as an attack on the right of journalists to protect their sources.

Yesterday's judgment in the Court of Appeal forces The Independent and four other news organisations to hand over documents that could lead to the identification of the person responsible for leaking information relating to a company takeover bid.

The source is alleged to have sent false documents regarding a possible takeover of South African Breweries by a Belgium brewery company.

Three Court of Appeal judges – Lord Justices Sedley, Ward and Longmore – dismissed a challenge by the four papers – The Independent, The Times, the Financial Times, and The Guardian – and Reuters news agency, but they agreed to suspend enforcement of the order until the case has been heard by the House of Lords.

The European Convention on Human Rights guarantees the media freedom of expression, while the Contempt of Court Act 1981 gives a statutory right to journalists who wish to protect their sources. The combined effect of this law has deterred many companies from taking legal action to make journalists reveal their sources.

But yesterday's judgment in favour of Interbrew may have reversed that trend by encouraging bosses to ask for judicial help whenever they want to winkle out employees who have gone to the papers.

Media law experts said yesterday that the decision represented a dilution of the right to protect sources.

Geraldine Proudler, the Olswang solicitor who advised The Guardian in its legal battles with Jonathan Aitken and Neil Hamilton, said newspapers have a duty to inform the public and a complementary right to protect sources.

"I'd argue that the public interest in a journalist being able to protect sources is greater than any interest in finding out who is responsible for [alleged fabrication of documents]."

Richard Gordon QC, an expert in human rights law, described the ruling as an attack both on freedom of expression and confidentiality between a journalist and a source. The human rights barrister Geoffrey Robertson QC said English judges "have an ingrained hostility to those who breach confidence".

But in his ruling yesterday Lord Justice Justice Sedley was clear: "The public interest in protecting the source of such a leak is in my judgment not sufficient to withstand the countervailing public interest in letting Interbrew seek justice in the courts against the source."

The so-called leaked documents were sent to news organisations after Interbrew asked its advisers, Goldman Sachs and Lazards, for work on a potential "rapprochement" with South African Breweries.

The documents were copies of the "presentation" papers and included what Interbrew called a "fabricated" offer price and a timetable for a bid. Last November, a number of papers published stories covering this bid on the basis of having received the documents, though they also included comments from Interbrew.

David Parsons, a media lawyer advising The Guardian, which was also ordered to deliver its own copy of the document, said: "The court has given undue weight to the potential criminality of the source without having due regard to the damaging affect that this will have on the journalists' ability to obtain information."

In this respect, The Independent had argued that it was in a particularly strong position because it obtained a copy of the document through different means than the other defendants and had promised the source confidentiality.

Simon Kelner, the editor-in-chief of The Independent, said yesterday: "This case is not just important for The Independent. It has implications for all media organisations who need to protect their sources and trusted contacts. If the courts are prepared to override the journalist's obligation to protect a source, this will have a damaging effect on the pursuance of all forms of investigative journalism."