Whistle-blowing and the Law – Part I Gavin Millar QC and Dr Andrew Scott

Overview  Rights-based jurisprudence  Potential liability for journalist having published ‘whistle-blown’ content  Protection of sources  Potential liability for journalist regarding newsgathering involving whistle-blower  Potential liability for source

Rights-based jurisprudence  Human Rights Act 1998 ‘domesticates’ European Convention standards  Basic scheme: ss 2, 3, and 6236  Relevant rights: Arts 8 and 10 ECHR810  Special rule on injunctions: s 1212

Publishing risks I  Confidentiality - 3 requirements stated in Coco v Clark (1969), per Megarry J  information must have necessary quality of confidence  information imparted in circumstances giving rise to an obligation of confidence  unauthorized disclosure of the imparted information (to detriment of person to whom duty owed)

Publishing risks II  Copyright - Copyright, Designs and Patents Act 1988 (as amended)  confers exclusive rights on holder – s 16 ‘acts restricted by copyright’s 16 ‘acts restricted by copyright’  pertains to ‘original’ copyright works of various types (s 1)‘original’ copyright works of various types (s 1)  range of defences, but some limitations in the context of content obtained through whistleblowing

Publishing risks III  Misuse of private information - ‘new methodology’ involving a 2 stage assessment  Stage 1: is there a ‘reasonable expectation of privacy’ in the information concerned?  Stage 2: should the information be protected in the ‘ultimate balancing test’

Publishing risks IV  Is there a ‘public interest’ defence available in respect of these potential claims?  confidentiality: yes, but double test – (a) does information concern matters of public interest, (b) is it in public interest that confidence should be breached?  copyright: yes, but...  privacy: not as such – an element in the ultimate balancing test  What do we mean by the ‘public interest’?

Source protection I  General principle  Professional rule: PCC Editors’ Code, cl 14PCC Editors’ Code  Legal principle: s 10, Contempt of Court Act 1981s 10, Contempt of Court Act 1981  Legal principle: Goodwin v UK (1996) 22 EHRR 123: “...freedom of expression constitutes one of the essential foundations of a democratic society and... the safeguards to be afforded to the press are of particular importance. Protection of journalistic sources is one of the basic conditions for press freedom... Without such protection, sources may 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 may be undermined and the ability of the press to provide accurate and reliable information may be adversely affected... an order of source disclosure... cannot be compatible with Article unless it is justified by an overriding requirement in the public interest” (at [39])

Source protection II  Factors relevant to disclosure decision  degree of need for disclosure of source identity (nature of wrongdoing; risk of further wrongdoing – interim remedy / time delay; extent to which other reasonable avenues exist / explored)  motive (or conduct) of the source  general importance of watchdog role / chilling effect of disclosure  degree of public interest in the particular story (?)  impact on Art 2 and 3 rights

Source protection III  Civil cases  generally, one party in a civil action may seek disclosure from the other allowing identification  libel: factor relevant to assessment of ‘responsibility’ in Reynolds public interest defence concerns source (nb recognition of source protection issue)  independent of any pre-existing action, aggrieved party may seek information from journalist regarding source under a Norwich Pharmacal order

Source protection IV  Criminal investigations  General: Police and Criminal Evidence Act 1984 (PACE), ss 9, 11, 13, 14 and Sch 1Police and Criminal Evidence Act 1984  differentiates journalistic material from other information and classifies it as ‘special procedure material’ or ‘excluded material’ depending on whether it is held in confidence  Sch 1 provides access criteria for special procedure material Sch 1  Terrorism-related: Terrorism Act 2000, s 37 and Sch 5Sch 5  paras 5 and 6 provide for access to both categories  Other: Criminal Justice Act 1987 s2; Inquiries Act 2005 s21; Financial Services & Markets Act 2000, s13s2s21s13

Source protection V  Circumvention of protections through the use of other powers?  Interception of communications and surveillance - Regulation of Investigatory Powers Act 2000  interception of communications, Part I Chapter I (nb s 5)Part I Chapter I  disclosure of communications data, Part I Chapter II (nb s 22)Part I Chapter II  directed (nb ss 28 and 29)) and intrusive (s 32) surveillance, Part II Part II  Bugging of premises - Police Act 1997, Part IIIPart III

Newsgathering risks I  Payment of source  source a witness in criminal proceedings: PCC Editors’ Code, cl 15; common law of contempt (?)PCC Editors’ Code  source a ‘criminal’: PCC Editors’ Code, cl 16  source a police officer: Prevention of Corruption Act 1906, s 1 (nb US Foreign Corrupt Practices Act)Prevention of Corruption Act 1906, s 1  general: Bribery Act 2010Bribery Act 2010

Newsgathering risks II  General  source a police officer/ public official: conspiracy, aiding or abetting others to commit misconduct in a public officemisconduct in a public office  source disclosing in breach of Official Secrets Act 1989: ss 5 and 656  Terrorism Act 2000 disclosure obligation: s 1919

Liability of source I  Payment of source  source a ‘criminal’: Coroners and Justice Act 2009, Part 7 (exploitation proceeds orders) Part 7  source a police officer: Prevention of Corruption Act 1906, s 1Prevention of Corruption Act 1906, s 1  general: Bribery Act 2010Bribery Act 2010

Liability of source II  General  source a juror: Contempt of Court Act 1981, s 8  source a police officer or public official: misconduct in a public office  source disclosing in breach of Official Secrets Act 1989: ss 1-4Official Secrets Act 1989  source an employee – breach of contract, but nb Public Interest Disclosure Act 1998 Public Interest Disclosure Act 1998  wider civil or criminal liability – eg breach of confidence; Data Protection Act 1998, s 55s 55

Dr Andrew Scott Gavin Millar QC Whistle-blowing and the Law – Part I cij summer school - 16 July 2011