Protection Of Sources

In Goodwin's Case, the European Court of Human Rights has supported a British journalist's refusal to disclose a confidential source.

When William Goodwin, a young trainee journalist on a British journal, The Engineer, received a telephone call leaking information about the finance affairs of a company, he was not to know that his subsequent attempts to protect the anonymity of his source would result in seven years of litigation - in the House of Lords and then in the European Court of Human Rights. Although he was threatened with imprisonment and a fine of £5,000, he consistently refused to reveal his source. He felt so strongly about his duty to protect his source that he even rejected a compromise offered by the trial judge of putting the information in a sealed envelope to be held by the court pending the result of his appeal.

After he spoke to his source, he drafted an article describing how the company facing an expected loss of £2.1 million was attempting to raise a £5 million loan. He then phoned the company to check facts in the article. They concluded the information came from a missing confidential corporate plan. They obtained an injunction to restrain the publication of the article.

British Shield Law

A "shield law" was in fact adopted in Britain in 1981. This gives journalists some protection from disclosing a source. Under it, a court is not to order the press to reveal the identity of a source unless satisfied that it is "necessary in the interests of justice or national security or for the prevention of disorder or crime". (Contempt of Court Act, 1981, Section 10.) The British courts have ruled that the words "interests of justice" are not limited to cases where disclosure is necessary in the particular action being taken, in this case the application for the injunction. After granting the injunction, the trial judge held, and the Court of Appeal and House of Lords both unanimously agreed, that it was in the interests of justice for the company to find the leak which was likened by one judge to a time bomb ticking away, likely to damage the company at some time in the future. They ordered the journalist to reveal his source.

He then brought a case against the UK in the European Court of Human Rights under Article 10 of the European Convention on Human Rights. The relevant part provides that the right to freedom of expression may be subject to restrictions prescribed by law and which are necessary in a democratic society.

The decision

The Court, an eighteen judge bench, stressed that freedom of expression constitutes one of the essential foundations of a democratic society. The safeguards to be afforded to the press were of particular importance. The protection of journalistic sources was one of the basic conditions of press freedom. "Without such protection, sources could be deterred from assisting the press in informing the public on matters of public interest. As a result the vital public watchdog role of the press could be undermined ..."

Because of the importance for press freedom in a democracy of protecting journalistic sources and the potentially chilling effect an order of source disclosure would have on the exercise of said freedom, such a measure could not be compatible with the convention unless it was justified by an over-riding requirement in the public interest. This had to be "convincingly established".

In the present case the injunction notice which had been circulated to the press generally had prevented dissemination of the confidential information. Eliminating the residual threat of damage would have three benefits to the company: revealing the source; obtaining compensation; and exposing a disloyal employee or collaborator. Even considered cumulatively they were held to be not sufficient to outweigh the vital public interest in the protection of Mr Goodwin's source. The Court found (11 to 7) that both the order to reveal his source, and the fine imposed for refusing to do so, were a violation of Mr Goodwin's right to freedom of expression. Nevertheless, 6 of the dissenting judges joined with the majority in asserting that the protection of journalists' sources is one of the basic conditions of press freedom and, without this protection, the vital public watchdog role of the press may be undermined.

An Australian Shield Law

While the case is not authority for an absolute shield law, it emphasises the proposition that the protection of journalists' confidential sources is vital to the role of a free press in a democratic society. It should encourage Australian moves for a shield law. It may also suggest that the implied constitutional guarantee of freedom of political communication in Australia gives some protection to the confidentiality of journalists' sources from disclosure at least in matters of political communication.

David Flint

see also
Index on David Flint's material on the website
Index of material on Confidential Sources

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