MA Journalism Law & Institutions Whistleblowers and the Protection of Sources Lincoln School of English and Journalism

Whistleblowers In the last two decades significant legal protection has been awarded to those who expose wrongdoings Employees who expose criminal activity in their workplace (insider trading, fraud etc.) Employees who expose health and safety violations or unfair working practices

Whistleblowers Public Interest Disclosure Act 1998 Protects individual employees who blow the whistle (usually though official channels) Does not protect the media who report such whistle blowing Law on breach of confidence applies but defence of public interest is available

The Protection of Sources Sources of information are the very life blood of journalism… In the majority of cases sources will be open Sources will be ‘official’ Sources will be non-controversial

The Protection of Sources In many other cases sources are secret Leaks (Insider information from official sources) Whistleblowers (Insiders who leak ‘unofficial information, usually concerning wrongdoings) Campaigners and protest groups

The Protection of Sources Protecting sources, who often run considerable risks is one of the principle journalistic ethics Para. 14 of the Press Complaints Commission Code of Practice and Schedule And OFCOM Code A Moral Obligation…

Public Interest As well as protecting the source there is a wider issue Many stories are in the public interest If sources cannot be secure in divulging information stories that the public have a right to know will never be revealed

Limited Protection? The law recognises the right to confidentiality But it also recognises several exceptions… The Interests of National Security The Interests of Justice The Prevention of Crime and Disorder

Limited Protection? Statutory requirements to reveal sources… The Contempt of Court Act 1981 The Police and Criminal Evidence Act 1984 The Official Secrets Acts The Terrorism Act 2000

National Security In a matter where National Security arose in any degree the courts will require disclosure of sources. X Ltd. v Morgan Grampian (1991) 1 AC 1 Disclosure of source “almost automatic”

National Security Secretary of State v Guardian Newspapers [1985] AC 339 Young civil servant Sarah Tisdall leaked a memo to The Guardian describing the deployment of Cruise Missiles in Britain The Guardian published the story

National Security The Guardian refused to identify the source of the leak In the trial The Guardian argued that the information the memo contained was not of a type that threatened national security That it and its source were protected under section 10, Contempt of Court Act

National Security The Government successfully argued that even if the information itself was not a threat to national security… Any civil servants prepared to leak information was themselves threats since they may leak something more dangerous next time The traditional fear of ‘the enemy within’

National Security House of Lords accepts government’s argument The Guardian is forced to reveal its source Sarah Tisdall is sentenced to six months in prison for breaches of the Official Secrets Act 1911

The Interests of Justice Originally believed to be an extension of the rules governing cases under way or planned X v Morgan Grampian (1991) 1 AC 1 Considerable widened the scope for divulging sources in the interests of justice

X v Morgan Grampian (1991) 1 AC 1 Trainee reporter Bill Goodwin received information about a company (Tetra) in financial difficulties Goodwin called the company for a statement who realised he must have got his information from an inside source with access to a confidential document that was missing

X v Morgan Grampian (1991) 1 AC 1 Tetra applied for an injunction to prevent publication and a mandatory injunction forcing disclosure of the source Goodwin claimed protection under section 10 CCA and the case proceeded all the way to the House of Lords The HL ordered Goodwin to disclose

X v Morgan Grampian (1991) 1 AC 1 Goodwin continued to refuse to disclose his source and was fined £5,000 for contempt of court Goodwin took his case the the ECHR

Goodwin v United Kingdom [1996] 22 EHRR 123 ECtHR rules that the order to disclose Breached article 10 ECHR the right to freedom of expression Failure to give adequate protection to sources undermined the press as a public watchdog The public interest in protecting the source outweighed Tetra’s interest in identifying them

Camelot Group v Centaur Communications Ltd (1999) QB 124 Camelot’s accounts leaked to Marketing Week before they were due to be made public Marketing Week ran a story highly critical of Camelot’s directors Camelot’s sought mandatory injunction for return of the leaked material

Camelot Group v Centaur Communications Ltd (1999) QB 124 Marketing Week defended the application on the grounds that returning the documents would identify the source Similar argument to Sarah Tisdall case A disloyal employee would pose an ‘ongoing threat’ to the company CA agreed and ordered the documents returned

The Interests of Justice The exercise of legal rights… Two test from X v Morgan Grampian (1)The nature of the information received from the source The greater the legitimate public interest The greater justification for protecting the source

The Interests of Justice (2) the manner in which the source obtained the information If the information was held legitimately then the source would be more likely to be protected Than if it was stolen or obtained by deception If it was a breach of confidence (in law)

The Interests of Justice This is a wide category and needs careful examination of the cases.. Further reading… Ashworth Secure Hospital v MGN [2002] UKHL 29 Interbrew v Financial Times [2002] EWCA Civ. 274 John v Express Newspapers [2000] 1 WLR 1931

Prevention of Crime If a journalist has information from a source that might prevent a crime Grant of applications for disclosure would be ‘almost automatic’ The same wide meaning as in: X v Morgan Grampian (1991)

Prevention of Crime Re an Inquiry under the Company Security (Insider Dealing) Act 1988 Journalist from The Independent questioned by Department of Trade and Industry inspectors The Independent, in its articles suggested they had sources within the departments

Re an Inquiry under the Company Security (Insider Dealing) Act 1988 DTI Inspectors used disclosure powers under The Financial Services Act 1986 There is no protection for journalists under this legislation Refusal is treated in principle as if they were in contempt of court So section 10 CCA provisions do apply

Re an Inquiry under the Company Security (Insider Dealing) Act 1988 HL decides that section 10 is not applicable Disclosure was necessary for the ‘prevention of crime’ The job of the inspectors was not just to prevent further insider dealing but to deter the crime generally (wider meaning applies) The identity of the source was necessary for that purpose

Police and Criminal Evidence Act 1984 In general police powers do not extend to obliging the public to assist them The Official Secrets Acts and Terrorism Acts are excluded Refusing to assist the police is not obstructing the police in their duties

Police Act 1996 The Police Act 1996 describes the offence as Wilfully obstructing the police in their duties Rice v Connolly (1966) 2 QB 414 ‘Wilfully’ means without legal excuse Moral and social ‘duty’ does not mean legal duty

Police Act 1996 If the police want information they must apply to the courts to obtain it This only applies to tangible information such as documents or tapes It does not include journalist’s knowledge of names of sources places etc.

Police Search and Seizure PACE 1984 permits police to search and seize journalistic material Including records, research materials documents and actual copy The rules concerning journalistic material are more strict than those applying generally Requiring a court order from a circuit judge

Search and Seizure Commissioner of Metropolitan Police v Mackenzie [1987] (unreported) The Sun collated documents during an investigation into ‘rent boys’ Warrant application made against Mackenzie the editor of the paper failed as he had no personal involvement and had never been in possession of the documents

Categories of Journalistic Material The Police and Criminal Evidence Act 1984 divides journalistic material into two categories a)Excluded Material b)Special Procedure Material

Excluded Material This material is that held under a pre- arranged understanding of confidence Given to the journalist on an understanding that its source would not be revealed This requirement of confidentiality must have been established at the time it was provided to the journalist

Excluded Material If the police wish to obtain this material they must apply to a circuit judge for a production order (Schedule 1 PACE 1984) An order shall only be given if the police can show that… There are reasonable grounds for believing that excluded material exists on the premises and That a search warrant would have been granted prior to PACE

Excluded Material There are few provisions which existed pre- PACE 1984 Unless the material is stolen by meaning of The Theft Act 1968 or unless it is concerned with offences under the Official secrets Acts It is unlikely that any production order will be granted

Special Procedure Material An order will only be granted if there are reasonable grounds for suspecting that: a) A serious offence has been committed b) There is special procedure material on the premises

Special Procedure Material c)The material is likely to be admissible evidence and other ways of obtaining that material have failed or were bound to fail. d) That it is in the public interest for the production order to be granted

Special Procedure Material Even though this provision appears to give protection to the journalist the courts have given a good degree of latitude on these conditions Journalists have often been ordered to submit materials in particular photographs which the police have demanded Usually to do with demonstrations and public order matters