The Interbrew case: the principle at stake goes to the heart of a free press

Journalism might often seem a frivolous or irresponsible business. Sometimes it is, and sometimes it ought to be. But behind all the froth, the scandal and the entertainment, it is also a serious enterprise. We all know, even if it is not at the front of our minds when we read, or write for, newspapers, that the right of free expression is essential to democratic liberty.

The ability of journalists to protect their sources is, in turn, a condition of free speech. That is why the otherwise obscure and technical case defended by four newspapers, including The Independent, against Interbrew, a Belgian brewery company, matters so deeply.

We do not pretend that this is a case that pitches the purest essence of liberty and the public interest on one side against totalitarian wickedness on the other. If it were so clear cut, it would never have come to court. But it has, and we have lost. We are now in the uncomfortable position of potentially defying the British courts while we take the case to Strasbourg. That is not a decision we take lightly.

The facts of the case are simple. Internal Interbrew documents about a possible takeover were anonymously leaked to several media organisations last November. The Independent was not one of the initial recipients, but one of our journalists, alerted to the leak, managed to obtain a copy. It turned out that all the documents had been altered in order to make a takeover bid seem more likely than it was. Reports of the documents depressed Interbrew's share price, and may have created a false market in which someone may have made an unlawful profit.

Interbrew demanded the documents in order to try to identify the source, claiming that a crime had been committed. The Independent, the Financial Times, The Times, The Guardian and Reuters news agency refused and were taken to court. We lost in the High Court and the Appeal Court, and this week were refused permission to appeal to the House of Lords. We decided yesterday to take our case to the European Court of Human Rights, because we believe that the law lords were wrong to refuse to hear the case and because the principle at stake is so important.

What is strange is that the law lords, in other cases, accept that the right of journalists to protect their sources is a vitally important safeguard. When Ashworth hospital demanded that the Daily Mirror reveal the source of a leak of the medical records of moors murderer Ian Brady, Lord Woolf, the Lord Chief Justice, described this right as of the "first importance".

He cited the warning by the Strasbourg court of the "chilling effect" of a ruling against a newspaper: even if it might be right in a particular case to pursue the source, it might frighten off people with more legitimate reasons for going to the press. Yet Lord Woolf still ruled in the hospital's favour – and prejudged our case by saying it was similarly "exceptional". We do not agree that the two cases are similar, and think our case should be judged on its merits.

We do not argue that journalists have an absolute right to conceal their sources, but we cannot believe that Interbrew's desire to find a corporate mole is sufficient to override it. Nor can we believe that the Financial Services Authority wants the first big test of its draconian powers of enforcement to be against five media organisations.

We stand by the right to protect our sources because otherwise people would be reluctant to speak to journalists about matters in the public interest. We believe that this right is enshrined in article 10 of the European Convention of Human Rights, and are confident that judges in this country will eventually give due weight to the right to freedom of expression.