Michael Smyth CBE: British democracy is the victor

Click to follow
The Independent Online

The unanimous judgment by the European Court of Human Rights in Strasbourg that an order to hand over a journalistic document infringed the media's right to free expression is a reminder that media freedoms are about more than a balanced defamation law.

Source protection is bred in the journalistic bone, so it was comforting to have the Strasbourg judges confirm the principle's importance in a democratic society, and the potentially chilling effect that an order for disclosure may have.

More than that, the tribunal said that any limitation on the confidentiality of journalists' sources called for the most careful scrutiny and would have to be convincingly established (which, in this case, it was not).

This was despite arguments that the source had acted maliciously, that the document had been altered so that the figures in it were wrong and that the document was needed by Interbrew so that further leaks could be stopped.

This is not the first occasion on which an Article 10 violation has been found against the UK at Strasbourg but our system of human rights protection has become a matter for political contention in the run-up to next year's election.

Michael Smyth CBE acted for the media companies in this case. He is a partner and head of the public policy practice at international law firm Clifford Chance