Voorhoof, Dirk

English

Ghent University Academic Bibliography

IRIS 2010-2/1European Court of Human Rights: Case of Financial Times a.o. v. UKEight years ago the British courts decided in favour of a disclosure order in the case of Interbrew SA v. FinancialTimes and others. The case concerned an order against four newspapers (FT, The Times, The Guardian and TheIndependent) and the news agency Reuters to deliver up their original copies of a leaked and (apparently) partiallyforged document about a contemplated takeover by Interbrew (now: Anheuser Bush InBev NV) of SAB (SouthAfrican Breweries). In a judgment of 15 December 2009, the European Court of Human Rights (Fourth Section)came to the conclusion that this disclosure order constituted a violation of the right of freedom of expressionand information, which includes press freedom and the right of protection of journalistic sources, as protected byArticle 10 of the European Convention of Human Rights.On the basis of a leaked report by a person X and further investigations by journalists, the British media inNovember and December 2001 reported that Interbrew (now: Anheuser Bush InBev NV) had been plotting a bidfor SAB. The media coverage had a clear impact on the market on shares of Interbrew and SAB, with Interbrew’sshare price decreasing, while both the share price and the volume of SAB’s shares traded obviously increased.At the request of Interbrew, the High Court on 19 December 2001 ordered delivery up of the documents underthe so-called Norwich Pharmacal principle. This principle implies that if a person through no fault of his ownbecomes involved in the wrongdoing of others so as to facilitate that wrongdoing, he comes under a duty to assistthe person who has been wronged by giving him full information and disclosing the identity of the wrongdoer.The four newspapers and the news agency were ordered not to alter, deface, dispose or otherwise deal with thedocuments received by person X and to deliver up the documents to Interbrew’s solicitor within 24 hours. Thenewspapers and Reuters appealed, but the disclosure order was confirmed by the Court of Appeal. In the LondonCourt’s judgment it was emphasised that what mattered critically in this case was the source’s purpose: “It was onany way a maleficent one, calculated to do harm whether for profit or for spite, and whether to the investing publicor Interbrew or both.” The public interest in protecting the source of such a leak was considered not sufficient towithstand the countervailing public interest in letting Interbrew seek justice in the courts against the source. Itwas also underlined that there is “no public interest in the dissemination of falsehood”, as the judge had foundthat the document, leaked by person X to the media, was partially forged. The Court of Appeal said: “Whilenewspapers cannot be asked to guarantee the veracity of everything they report, they in turn have to accept thatthe public interest in protecting the identity of the source of what they have been told is disinformation may notbe great.” Accordingly, the Court of Appeal dismissed the appeals. On 9 July 2002, the House of Lords refused thenewspapers leave to appeal, following which Interbrew required that the newspapers and Reuters comply with thecourt order for delivery up of the documents. The newspapers and Reuters however continued to refuse to complyand applied to the European Court of Human Rights, arguing that their rights under Article 10 of the Conventionhad been violated.The European Court of Human Rights came to the conclusion that the British judicial authorities in the Interbrewcase did indeed neglect the interests related to the protection of journalistic sources, by overemphasising theinterests and arguments in favour of source disclosure. The Court accepted that the disclosure order in theInterbrew case was prescribed by law (Norwich Pharmacal and Section 10 of the Contempt of Court Act 1981) andwas intended to protect the rights of others and to prevent the disclosure of information received in confidence,both of which are legitimate aims. The Court however did not consider the disclosure order to be necessary in ademocratic society. First, the Court in general terms reiterated that freedom of expression constitutes one of theessential foundations of a democratic society and that, in that context, the safeguards guaranteed to the pressare particularly important: “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 ofpublic interest. As a result, the vital “public watchdog” role of the press may be undermined and the ability of thepress to provide accurate and reliable reporting may be adversely affected” (§59). Disclosure orders in relation tojournalistic sources have a detrimental impact not only on the source in question, whose identity may be revealed,but also on the newspaper against which the order is directed, whose reputation may be negatively affected inthe eyes of future potential sources by the disclosure, and on the members of the public, who have an interest inreceiving information imparted through anonymous sources and who are also potential sources themselves. TheCourt accepted that it may be true that the public perception of the principle of non-disclosure of sources wouldsuffer no real damage when overridden in circumstances where it is clear that a source was acting in bad faith witha harmful purpose and disclosed intentionally falsified information. The Court made clear however that domesticcourts should be slow to assume, in the absence of compelling evidence, that these factors are present in anyparticular case. The Court emphasised most importantly that “the conduct of the source can never be decisive indetermining whether a disclosure order ought to be made but will merely operate as one, albeit important, factorto be taken into consideration in carrying out the balancing exercise required under Article 10 §2” (§63).IRIS 1Applying these principles to the Interbrew case. the European Court of Human Rights came to the conclusion thatthe British Courts had given too much weight to the alleged bogus character of the leaked document and to theassumption that the source had acted mala fide . While the Court considered that there may be circumstances inwhich the source’s harmful purpose would in itself constitute a relevant and sufficient reason to make a disclosureorder, the legal proceedings against the four newspapers and Reuters did not allow X’s purpose to be ascertainedwith the necessary degree of certainty. The Court therefore did not place significant weight on X’s alleged purposein the present case, but did clearly emphasise the public interest in the protection of journalistic sources. TheCourt accordingly found that Interbrew’s interests in eliminating, by proceedings against X, the threat of damagethrough future dissemination of confidential information and in obtaining damages for past breaches of confidencewere, even if considered cumulatively, insufficient to outweigh the public interest in the protection of journalists’sources. The judicial order to deliver up the report at issue was considered to constitute a violation of Article 10of the Convention. The European Court was unanimous in its judgment, although it took the Court seven years tocome to its conclusion.• Judgment by the European Court of Human Rights (Fourth Section), case of Financial Times v. The United Kingdom, Application no. 821/03 of 15December 2009http://merlin.obs.coe.int/redirect.php?id=12221ENDirk VoorhoofGhent University (Belgium) & Copenhagen University (Denmark) & Member of the Flemish Regulator for theMediaThe objective of IRIS is to publish information on legal and law-related policy developments that are relevant to theEuropean audiovisual sector. Despite our efforts to ensure the accuracy of the content, the ultimate responsibilityfor the truthfulness of the facts on which we report is with the authors of the articles. Any opinions expressedin the articles are personal and should in no way be interpreted as representing the views of any organisationsrepresented in its editorial board.© European Audiovisual Observatory, Strasbourg (France)IRIS 2

European court of human rights: case of financial times a.o. v. UK

https://biblio.ugent.be/publication/877386/file/6826446.pdf

European court of human rights: case of financial times a.o. v. UK

Abstract

Similar works

Full text

Available Versions

Ghent University Academic Bibliography