Page 223 - Law and the Media

Law and the Media
The court emphasized that:

The judge’s task will always be to weigh in the scales the importance of enabling
the ends of justice to be attained, in the circumstances of the particular case on the
one hand, against the importance of protecting the source on the other hand. In this
balancing exercise it is only if the judge is satisfied that the disclosure in the
interests of justice is of such preponderating importance as to override the statutory
privilege against disclosure that the threshold of necessity will be reached.

Among the factors affecting the balancing exercise would be the nature of the information
obtained from the source:

. . . the greater the legitimate public interest in the information the source has given
to the publisher or intended publisher, the greater will be the importance of
protecting the source

and the manner in which the source obtained it:

. . . 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.

This definition allows the ‘interests of justice’ exception to be argued in all situations where
a claimant can show some prejudice. This broad interpretation is difficult to reconcile with
the limitations imposed by Section 10 of the CCA, which specifically provides only four
exceptions to the presumption in favour of journalists who wish to protect their sources.

On the facts of the case in Morgan-Grampian, the court found that it was necessary ‘in the
interests of justice’ to order the disclosure of the source, even though the distribution of the
confidential information had been restrained by the injunction. Despite the ruling against
him, Goodwin continued to refuse to surrender the documentation and was fined £5000 for
being in contempt of court.

The law remained largely unchallenged until March 1996, when Goodwin’s application for
review came before the European Convention of Human Rights (Goodwin v United Kingdom
(1996)). The court held that the order forcing Goodwin to disclose his source breached Article
10 of the Convention. It noted that without protection, journalists’ sources could be deterred
from assisting the public by informing the press of matters of public interest. This would
undermine the role of the press as public watchdog. The court also found that the interest of the
company in identifying the disloyal employee who had given Goodwin the information and in
preventing damage to the company by disclosure of confidential information was not enough
to outweigh the public interest in protecting Goodwin’s source.
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