Lexploria

EUROPEAN COMMISSION OF HUMAN RIGHTS

Application No. 17488/91

William Goodwin

against

the United Kingdom

REPORT OF THE COMMISSION

(adopted on 1 March 1994)

TABLE OF CONTENTS

page

I. INTRODUCTION

(paras. 1-18) . . . . . . . . . . . . . . . . . . . . . . . . 1

A. The application

(paras. 2-4) . . . . . . . . . . . . . . . . . . . . . . 1

B. The proceedings

(paras. 5-13). . . . . . . . . . . . . . . . . . . . . . 1

C. The present Report

(paras. 14-18) . . . . . . . . . . . . . . . . . . . . . 2

II. ESTABLISHMENT OF THE FACTS

(paras. 19-41). . . . . . . . . . . . . . . . . . . . . . . . 3

A. Particular circumstances of the case

(paras. 19-41) . . . . . . . . . . . . . . . . . . . . . 3

B. Relevant domestic law

(paras. 42). . . . . . . . . . . . . . . . . . . . . . . 7

III. OPINION OF THE COMMISSION

(paras. 42-70). . . . . . . . . . . . . . . . . . . . . . . . 8

A. Complaint declared admissible

(para. 43) . . . . . . . . . . . . . . . . . . . . . . . 8

B. Point at issue

(para. 44) . . . . . . . . . . . . . . . . . . . . . . . 8

C. Article 10 of the Convention

(paras. 45). . . . . . . . . . . . . . . . . . . . . . . 8

D. Article 10 para. 1 of the Convention

(paras. 46-48) . . . . . . . . . . . . . . . . . . . . . 8

E.Article 10 para. 2 of the Convention

(para. 49-69). . . . . . . . . . . . . . . . . . . . . . 9

i. `prescribed by law'

(paras. 50-57) . . . . . . . . . . . . . . . . . . 9

ii. legitimate aim

(para. 58) . . . . . . . . . . . . . . . . . . . .10

iii. 'necessary in a democratic society'

(paras. 59-69) . . . . . . . . . . . . . . . . . .10

CONCLUSION

(para. 70) . . . . . . . . . . . . . . . . . . . .13

DISSENTING OPINION OF MR. S. TRECHSEL JOINED BY

MM. C. A. NØRGAARD, F. ERMACORA, G. JÖRUNDSSON,

H. G. SCHERMERS AND J.-C. GEUS. . . . . . . . . . . . . . . .14

APPENDIX I HISTORY OF THE PROCEEDINGS . . . . . . . . . . . .15

APPENDIX II DECISION OF THE ADMISSIBILITY. . . . . . . . . . .16

I. INTRODUCTION

1. The following is an outline of the case as submitted to the

European Commission of Human Rights, and of the procedure before the

Commission.

A. The application

2. The applicant is William Goodwin, a British citizen born in 1966

and resident in London. He is represented by Mr. Geoffrey Bindman, a

solicitor practising in London.

3. The application is directed against the United Kingdom. The

respondent Government are represented by Mr. Iain Christie as Agent,

from the Foreign and Commonwealth Office.

4. The case concerns the complaint of the applicant, a journalist,

that the disclosure order made against him which required him to reveal

the identity of a source of information interfered unjustifiably with

his freedom of expression. It raises issues under Article 10 of the

Convention.

B. The proceedings

5. The application was introduced on 27 September 1990 and

registered on 26 November 1990.

6. On 7 April 1992, the Commission decided to communicate the

application to the respondent Government for their written observations

on the admissibility and merits of the application.

7. The Government submitted their written observations on

18 August 1992. The applicant submitted his written observations in

reply on 3 December 1992.

8. The Commission granted the applicant legal aid on

11 December 1992.

9. On 2 April 1992, the Commission decided to invite the parties to

an oral hearing on the admissibility and merits.

10. At the hearing which was held on 9 September 1993, the Government

were represented by Mr. Iain Christie as Agent, Mr. Michael Baker QC,

Counsel, and Mr. Oliver Parker, Adviser. The applicant was represented

by Mr. Geoffrey Robertson QC, Counsel, Mr. Geoffrey Bindman, Solicitor,

and Mr. Robert Sack and Ms. Anne Hilker, lawyers from New York.

11. On 7 September 1993, the Commission declared the application

admissible. The parties were then invited to submit any additional

observations on the merits of the application.

12. On 25 October 1993, the Government submitted further observations

on the merits.

13. After declaring the case admissible, the Commission, acting in

accordance with Article 28 (b) of the Convention, placed itself at the

disposal of the parties with a view to securing a friendly settlement

of the case. In the light of the parties' reactions, the Commission

now finds that there is no basis on which a friendly settlement can be

effected.

C. The present Report

14. The present Report has been drawn up by the Commission in

pursuance of Article 31 of the Convention and after deliberations and

votes, the following members being present:

MM. C.A. NØRGAARD, President

S. TRECHSEL

A. WEITZEL

F. ERMACORA

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

H.G. SCHERMERS

H. DANELIUS

Mrs. G.H. THUNE

Sir Basil HALL

MM. C.L. ROZAKIS

L. LOUCAIDES

J.-C. GEUS

B. MARXER

G.B. REFFI

I. CABRAL BARRETO

B. CONFORTI

15. The text of the Report was adopted by the Commission on

1 March 1994 and is now transmitted to the Committee of Ministers in

accordance with Article 31 para. 2 of the Convention.

16. The purpose of the Report, pursuant to Article 31 para. 1 of the

Convention, is

1) to establish the facts, and

2) to state an opinion as to whether the facts found disclose

a breach by the State concerned of its obligations under

the Convention.

17. A schedule setting out the history of the proceedings before the

Commission is attached hereto as APPENDIX I and the Commission's

decision on the admissibility of the application as APPENDIX II.

18. The full text of the parties' submissions, together with the

documents lodged as exhibits, are held in the archives of the

Commission.

II. ESTABLISHMENT OF THE FACTS

A. Particular circumstances of the case

19. The applicant is a journalist. In August 1989, he began working

for the publication "The Engineer".

20. On 2 November 1989, the applicant was telephoned by a source,

which gave him information about a company, X Ltd.. The information was

unsolicited, was not in exchange for payment and the applicant alleges

that he had no reason to believe that the information was derived from

a stolen or confidential document. The information was given on an

unattributable basis.

21. On 6 and 7 November 1989, the applicant telephoned X Ltd. to

check the facts and seek their comments on the information which he had

been given. He prepared a draft article for publication in "The

Engineer" to the effect that the company was in the process of raising

a £5 million loan and had financial problems as a result of an expected

loss of £2.1 million for 1989.

22. X Ltd. alleged that the information was derived from a draft of

its confidential Corporate Plan which had gone missing on

1 November 1989 after it had been left by an accountant in an unlocked

office on X Ltd.'s premises. On 7 November 1989, X Ltd. applied for

and obtained an ex parte interim injunction to restrain the publishers

of "The Engineer" from publishing any information derived from the

Corporate Plan.

23. On 8 November 1989, a writ was issued against the publishers

claiming an injunction and a notice of motion was served seeking, inter

alia, an order that the publishers disclose the identity of their

source.

24. In an affidavit dated 8 November 1989, the Chief Executive

Officer of X Ltd. stated that if the plan was made public it could

result in a complete loss of confidence in the company by its

creditors, its potential creditors, its customers and in particular its

suppliers, with a risk of a loss of orders and refusal to supply the

company with goods and services. Such loss of confidence would also

inevitably lead to the banks and venture capitalists involved in the

company re-financing discussion reconsidering their position. That in

turn could result in the winding up of the company with consequent job

losses to approximately 400 employees. He confirmed that the intention

of the company was to prevent any further disclosure and that if they

became aware of the identity of the source, X Ltd. would commence

proceedings for further interlocutory relief to restrain publication

and claiming such damages arising from any publication.

25. On 10 November 1989, the publishers submitted their evidence for

the motion, including an affidavit by the applicant in which he

referred to notes of his conversation with his source.

26. On 14 November 1989, at the hearing of the motion, X Ltd.

obtained an order that the publishers should disclose the applicant's

notes, which identified his source, pursuant to section 10 of the

Contempt of Court Act 1981 ("the 1981 Act").

27. On 15 November 1989, X Ltd. were given leave to join the

applicant and his employer to the proceedings. The judge gave all

three defendants until 3,00 p.m. on 16 November 1989 to deliver up the

notes. He also granted interim injunctions against the two additional

defendants, the applicant and his employer.

28. On 16 November 1989, X Ltd. informed all national newspapers and

relevant journals of the injunction.

29. On 17 November 1989, the High Court made an order that the

applicant represented all persons who received the plan or information

derived from it without the authority of X Ltd. and that such persons

should, inter alia, deliver up any copies of the plan in their

possession. The motion was then adjourned for the applicant to bring

this order to the attention of his source. The applicant declined to

do so however.

30. On 22 November 1989, the applicant was again ordered to disclose

his notes: this time by the deadline of 3.00 pm on 23 November 1989.

Mr. Justice Hoffmann stated that it was necessary "in the interests of

justice" for the purposes of section 10 of the 1981 Act for the

source's identity to be disclosed to enable X Ltd. to bring proceedings

against the source to recover the document, to obtain an injunction

preventing further publication or to seek damages for the expenses to

which they had been put. Although the applicant was an innocent

recipient of the information, the judge concluded that the source who

had telephoned the applicant had probably seen the stolen document and

indeed was probably the thief. He was satisfied that there was strong

prima facie evidence that X Ltd. had suffered a serious wrong by the

theft of its confidential file and that it would suffer serious

commercial damage if the information was disclosed. He dismissed the

argument of the applicant that it was in the public interest for the

information to be disclosed, stating that there was nothing to show

that previously published information about the company was false and

that there was no legal or moral ground for making the information

available to customers, suppliers or competitors.

31. The applicant applied the same day to the Court of Appeal for a

stay. The stay was refused but the Court of Appeal substituted an

order that the applicant either disclose his notes to X Ltd. or deliver

them to the Court in a sealed envelope with accompanying affidavit. The

applicant did not comply with either order by the deadline.

32. On 23 November 1989, the applicant lodged an appeal against the

order of 22 November on the grounds that the disclosure order was not

necessary in the interests of justice, and that the public interest in

publication outweighed the interest in preserving confidentiality, and

that since the applicant had not facilitated the breach of confidence,

a disclosure order against him was not valid. The same day, the

applicant was served with a notice of motion seeking his committal for

contempt.

33. On 24 November 1989, in a hearing in the High Court it was

conceded by the applicant's counsel that he was in contempt. The

motion was however adjourned pending the applicant's appeal.

34. On 29 November 1989, the Court of Appeal began to hear the

applicant's appeal. While it heard counsel for the publisher and the

applicant's employer, it refused to hear applicant's counsel since the

applicant was in continuing contempt.

35. On 12 December 1989, the Court of Appeal dismissed the appeal

against the disclosure order but granted leave to appeal to the House

of Lords. Lord Justice McCowan noted that the applicant must have been

"amazingly naive" if it did not occur to him that the source was at the

very least guilty of a breach of confidence.

36. The appeal was heard before the House of Lords between 5 and

8 March 1990.

37. On 4 April 1990, the House of Lords dismissed the appeal. It

applied the principle expounded by Lord Reid in a previous leading case

and applied in previous cases:

" seem to me to point to a very reasonable

principle that if through no fault of his own a person gets

mixed up in the tortious acts of others so as to facilitate

their wrong-doing he may incur no personal liability but he

comes under a duty to assist the person who has been

wronged by giving him full information and disclosing the

identity of the wrongdoers." (Norwich Pharmacal Co. v.

Customs and Excise Commissioners [1974] A.C. 133).

38. Lord Bridge, in one of the five separate speeches given in the

applicant's case, stated:

"Whenever disclosure is sought, as here, of a document

which will disclose the identity of a source within the

ambit of section 10, the statutory restriction operates

unless the party seeking disclosure can satisfy the court

that 'disclosure is necessary' in the interests of one of

the four matters of public concern that are listed in the

section. I think it is indisputable that where a judge asks

himself the question: `Can I be satisfied that disclosure

of the source of this information is necessary to serve

this interest?' he has to engage in a balancing exercise.

He starts with the assumptions, first, that the protection

of sources is itself a matter of high public importance,

secondly, that nothing less than necessity will suffice to

override it, thirdly, that the necessity can only arise out

of concern for another matter of high public importance,

being one of the four interests listed in the section ..."

39. He referred to a number of other cases in relation to how the

balancing exercise should be conducted (e.g. Secretary of State for

Defence v. Guardian Newspapers Ltd [1985] A.C. 339) and continued:

"It would be foolish to attempt to give comprehensive

guidance as to how the balancing exercise should be carried

out. But it may not be out of place to indicate the kind of

factors which will require consideration. In estimating

the importance to be given to the case in favour of

disclosure there will be a wide spectrum within which the

particular case must be located. If the party seeking

disclosure shows, for example, that his very livelihood

depends upon it, this will put the case near one end of the

spectrum. If he shows no more than that what he seeks to

protect is a minor interest in property, this will put the

case at or near the other end. On the other side the

importance of protecting a source from disclosure in

pursuance of the policy underlying the statute will also

vary within a wide spectrum. One important factor will be

the nature of the information obtained from the source.

The greater the legitimate public interest in the

information which the source has given to the publisher or

intended publisher, the greater will be the importance of

protecting the source. But another and perhaps more

significant factor which will very much affect the

importance of protecting the source will be the manner in

which the information was itself obtained by the source. 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. I draw

attention to these considerations by way of illustration

only and I emphasise once again that they are in no way

intended to be read as a code ...

In the circumstances of the instant case, I have no doubt

that Hoffmann J. and the Court of Appeal were right in

finding that the necessity for disclosure of Mr. Goodwin's

notes in the interests of justice was established. The

importance to the plaintiffs of obtaining disclosure lies

in the threat of severe damage to their business, and

consequentially to the livelihood of their employees, which

would arise from disclosure of the information contained in

their corporate plan while their refinancing negotiations

are still continuing. This threat, accurately described by

Lord Donaldson of Lymington M.R. [1990] 2 W.L.R. 421, 439,

as 'ticking away beneath them like a time bomb' can only be

defused if they can identify the source either as himself

the thief of the stolen copy of the plan or as a means to

lead to the identification of the thief and thus put

themselves in a position to institute proceedings for the

recovery of the missing document. The importance of

protecting the source on the other hand is much diminished

by the source's complicity, at the very least, in a gross

breach of confidentiality which is not counterbalanced by

any legitimate interest which publication of the

information was calculated to serve. Disclosure in the

interests of justice is, on this view of the balance,

clearly of preponderating importance so as to override the

policy underlying the statutory protection of sources and

the test of necessity for disclosure is satisfied ..."

40. Lord Templeman concurring also commented that the applicant ought

to have "recognised that (the information) was both confidential and

damaging".

41. On 10 April 1990, the High Court fined the applicant £5 000 for

contempt.

B. Relevant domestic law

42. Section 10 of the Contempt of Court Act 1981 provides:

"No court may require a person to disclose, nor is a person

guilty of contempt of court for refusing to disclose the

source of information contained in the publication for

which he is responsible, unless it be established to the

satisfaction of the court that disclosure is necessary in

the interests of justice or national security or for

prevention of disorder or crime."

III. OPINION OF THE COMMISSION

A. Complaint declared admissible

43. The Commission has declared admissible the applicant's complaint

concerning the imposition of a disclosure order requiring him to reveal

the identity of a source.

B. Point at issue

44. The issue to be determined is whether there has been a violation

of Article 10 (Art. 10) of the Convention.

C. Article 10 (Art. 10) of the Convention

45. Article 10 (Art. 10) of the Convention provides as relevant:

"1. Everyone has the right to freedom of expression. This

right shall include freedom to hold opinions and to receive and

impart information and ideas without interference by public

authority and regardless of frontiers...

2. The exercise of these freedoms, since it carries with it

duties and responsibilities, may be subject to such formalities,

conditions, restrictions or penalties as are prescribed by law

and are necessary in a democratic society, in the interests of

national security, territorial integrity or public safety, for

the prevention of disorder or crime, for the protection of health

or morals, for the protection of the reputation or rights of

others, for preventing the disclosure of information received in

confidence, or for maintaining the authority and impartiality of

the judiciary."

D. Article 10 para. 1 (Art. 10-1) of the Convention

46. The applicant submits that the disclosure order made by the High

Court and confirmed on appeal requiring him to reveal an anonymous

source constituted an interference with his freedom of expression

guaranteed by Article 10 (Art. 10) of the Convention.

47. The Government does not dispute that the measure constituted such

an interference.

48. The Commission finds that the disclosure order has a potential

chilling effect on the readiness of people to give information to

journalists such as the applicant. It also considers that the order

in itself which exerts coercion on the applicant to reveal information

which he received on a non-attributable basis constitutes a restriction

on his right to freedom of expression. There are circumstances in

which a "negative right" is to be implied in Article 10 (Art. 10) not

to be compelled to give information or to state an opinion (see eg.

No. 9228/80, Dec. 16.12.82, D.R. 30 p. 132 and No. 12090/86,

Dec. 4.7.89, unpublished). Compulsion to provide information as to a

journalist's sources must in particular constitute a restriction in the

capacity of a journalist freely to receive and impart information

without interference by a public authority.

E. Article 10 para. 2 (Art. 10-2) of the Convention

49. Consequently, it must be determined whether the restriction was

justified under Article 10 para. 2 (Art. 10-2) of the Convention in

particular, whether it is "prescribed by law", pursues one or more of

the aims enumerated and is "necessary in a democratic society" for that

or those aims.

i. "prescribed by law"

50. This expression has been interpreted by the Court, firstly, as

requiring that the interference must have some basis in domestic law

and secondly, as referring to the quality of the law (see eg. Eur.

Court H.R., Kruslin and Huvig judgments of 24 April 1990, Series A

no. 176-A, p. 20, paras. 26-27 and no. 176-B, p. 52, paras. 54-55).

51. As regards the basis of the restriction in domestic law, the

Commission recalls that the disclosure order issued by the High Court

was confirmed on appeal by the Court of Appeal and the House of Lords,

who were applying the substantive law concerning disclosure in light

of the provisions of section 10 of the Contempt of Court Act 1981.

52. As regards the quality of the law, this requires it to be

compatible with the rule of law in providing a measure of protection

against arbitrary interferences. In this context, it should be

accessible to the person concerned, who must moreover be able to

foresee its consequences for him (see eg. Eur. Court H.R., Sunday Times

judgment of 26 April 1979, Series A no. 30 p. 31, para. 49 and Malone

judgment of 2 August 1984, Series A no. 82, p. 32, para. 67).

53. The applicant submits that the law permitting such orders is not

formulated with sufficient precision to enable the individual to

foresee with reasonable certainty when it will be applied. In

particular, he argues that the criterion of the "interests of justice"

in section 10 of the 1981 Act is insufficiently certain and renders

impossible the task of a journalist in assessing whether or not he can

give a source an undertaking not to reveal his identity.

54. The Government argue that the substantive law set out in the

Norwich Pharmacal case (see para. 37) and the terms of section 10 of

the 1981 Act were clear and enabled the applicant to foresee, to a

reasonable degree, the consequences which the receipt of information

from his source and his use of that information might entail.

55. The Commission recalls that in the Sunday Times case, the Court

stated:

"In the Court's opinion, the following are two of the

requirements that flow from the expression 'prescribed by

law'. Firstly, the law must be adequately accessible: the

citizen must be able to have an indication that is adequate

in the circumstances of the legal rules applicable to a

given case. Secondly, a norm cannot be regarded as a 'law',

unless it is formulated with sufficient precision to enable

the citizen to regulate his conduct: he must be able - if

need be with appropriate advice - to foresee, to a degree

that is reasonable in the circumstances, the consequences

which a given action may entail. Those consequences need

not be foreseeable with absolute certainty: experience

shows this to be unattainable. Again, whilst certainty is

highly desirable, it may bring in its train excessive

rigidity and the law must be able to keep pace with

changing circumstances. Accordingly, many laws are

inevitably couched in terms which, to a greater or lesser

extent, are vague and whose interpretation and application

are questions of practice." (Eur. Court H.R., Sunday Times

judgment, loc.cit., p.31 para. 49)

56. The Commission considers that the judgments in this case reveal

that there exists a significant body of case-law concerning the

circumstances in which disclosure orders may be made. The particular

privilege afforded to journalists by section 10 of the Contempt of

Court Act 1981 is subject to four exceptions which are set out in

concise terms without definition. The Commission notes the view of the

House of Lords that in each case to which section 10 applies the judge

has to engage in a balancing exercise and that it would be foolish to

attempt to give a comprehensive definition as to how the balancing

exercise should be carried out.

57. The Commission recalls however that the proceedings brought

against the applicant involved one of the first cases which considered

the scope of the immunity against disclosure given to journalists under

section 10 of the 1981 Act in the context of the exception in "the

interests of justice". Consequently, there may be some doubt as to

whether at the time this area of the law had been developed with

sufficient precision as to render it reasonably accessible and

foreseeable. The Commission finds it unnecessary however to determine

this issue given its conclusion below as to the necessity of the

restriction.

ii. legitimate aim

58. As regards the purpose of the restriction, the Commission recalls

that the House of Lords gave as its reason for its decision that the

necessity in "the interests of justice" for the disclosure of the

applicant's notes (which revealed the identity of the source) had been

established. The Commission notes that the object of the litigation and

of the order of disclosure was the protection of the rights of X Ltd.

(who was under threat of severe damage to its business), a legitimate

aim under Article 10 para. 2 (Art. 10-2).

iii. "necessary in a democratic society"

59. The question remains whether the interference was "necessary".

60. The Court has recently summarised the major principles of its

case-law on the "necessity" test in Article 10 (Art. 10) of the

Convention as follows:

"(a) Freedom of expression constitutes one of the essential

foundations of a democratic society; subject to paragraph 2 of

Article 10 (Art. 10-2), it is applicable not only to

'information' or 'ideas' that are favourably received or regarded

as inoffensive or as a matter of indifference, but also to those

that offend, shock or disturb. Freedom of expression, as

enshrined in Article 10 (Art. 10), is subject to a number of

exceptions which, however, must be narrowly interpreted and the

necessity for any restrictions must be convincingly established.

(b) These principles are of particular importance as far as the

press is concerned. While it must not overstep the bounds set,

inter alia, in the `interests of national security' or for

`maintaining the authority of the judiciary', it is nevertheless

incumbent on it to impart information and ideas on matters of

public interest. Not only does the press have the task of

imparting such information and ideas: the public also has a

right to receive them. were it otherwise, the press would be

unable to play its vital role of `public watchdog'.

(c) The adjective 'necessary', within the meaning of Article 10

para. 2 (Art. 10-2), implies the existence of a 'pressing social

need'. The Contracting States have a certain margin of

appreciation in assessing whether such a need exists, but it goes

hand in hand with a European supervision, embracing both the law

and the decisions applying it, even those given by independent

courts. The are therefore empowered to give

the final ruling on whether a 'restriction' is reconcilable with

freedom of expression as protected by Article 10 (Art. 10).

(d) The task, in exercising

supervisory jurisdiction, is not to take the place of the

competent national authorities but rather to review under

Article 10 (Art. 10) the decisions they delivered pursuant to

their power of appreciation. This does not mean that

supervision is limited to ascertaining whether the respondent

State exercised its discretion reasonably, carefully and in good

faith; what to do is to look at the interference

complained of in the light of the case as a whole and determine

whether it was 'proportionate to the legitimate aim pursued' and

whether the reasons adduced by the national authorities to

justify it are 'relevant and sufficient'."

(Eur. Court H.R., Sunday Times (No. 2) judgment of

26 November 1991, Series A no. 217, p. 29, para. 50).

61. The applicant submits that there was no pressing social need for

the disclosure order having regard to the fact that interests of X Ltd.

were protected from publication in the press by an injunction. He also

argues that it was disproportionate given that X Ltd. had taken no

other steps to attempt to trace the missing plan and that they were

motivated rather to find and punish the source than to safeguard their

business from potential damage.

62. The applicant emphasises that it is of paramount importance that

journalists continue to receive from their sources information of

interest to the public and that an order of disclosure cannot be

justified in light of that consideration unless there is a real threat

to national security, it is necessary to prevent a serious crime or

concerns information which might lead to the acquittal of an innocent

person. The restriction was also disproportionate to the aim since it

included the threat of up to 2 years' imprisonment for contempt of

court.

63. The Government contend that an injunction was not sufficient to

protect X Ltd. since the courts had found that the source was either

malicious or grossly irresponsible, that the plan had been stolen and

preventing publication by the media would not prevent disclosure to

customers or to competitors. Further they point out that the courts

gave full weight to the interests of the media, for example,

Mr. Justice Hoffmann attempted to find a compromise which would have

allowed the applicant to maintain the confidentiality of the source by

co-operating in passing on to the source the court order requiring him

to deliver up the copy of the Corporate Plan. They submit that the

interest of protecting journalistic sources cannot always outweigh all

other interests. Since the domestic courts gave full and reasoned

consideration to the competing interests at stake, their decision that

disclosure was necessary in the circumstances of the case falls within

the State's margin of appreciation.

64. The Commission considers that protection of the sources from

which journalists derive information is an essential means of enabling

the press to perform its important function of "public watchdog" in a

democratic society. If journalists could be compelled to reveal their

sources, this would make it much more difficult for them to obtain

information and as a consequence, to inform the public about matters

of public interest. The right to freedom of expression, as protected

by Article 10 (Art. 10) of the Convention, which includes the right to

receive and impart information, therefore requires that any such

compulsion must be limited to exceptional circumstances where vital

public or individual interests are at stake. The question is therefore

whether such exceptional circumstances existed in the present case.

65. The Commission recalls that X Ltd. sought disclosure of the

identity of the source on the ground that it wished to prevent damage

to its interests by any further publication of its contents. The House

of Lords referred to the risk in dramatic terms, finding that the

importance to the company of obtaining disclosure lay in the threat of

severe damage to their business, and consequentially to the livelihood

of their employees.

66. The Commission notes that an injunction was in effect restraining

the publishers of "The Engineer", the applicant and his employers from

publishing any information derived from the Corporate Plan and that all

national newspapers and relevant journals were informed of the

injunction. It would then have been a contempt of court for any of

these to have published that information and none has done so. The risk

was that the source might have conveyed the information to customers

or to competitors of X Ltd. There is no evidence that this occurred.

67. The Commission does not find that the allegation that the company

risked being wound up, with loss of livelihood to 400 employees, if

there was any further leak of information was substantiated before the

domestic courts. The Commission is not convinced that the giving of

information as to possible losses and the intention of the company to

seek further financing would have entailed the dire consequences

predicted with regard to confidence of customers, suppliers and

financing partners. In this context, the Commission notes that despite

the continuing anonymity of the source X Ltd. has apparently suffered

none of the harm adverted to in the proceedings in the domestic courts.

68. The Commission considers that the information which the applicant

intended to publish is a type commonly found in the business press.

While it may have derived from a possible breach of confidence (no

theft of the document was reported or proved), it would not be an

exaggeration to assume that much of the information provided by the

press must be of similar origin.

69. In these circumstances, the Commission cannot find that there

existed any exceptional circumstances which would have justified a

departure to be made from the fundamental principle that the sources

of the press should be protected from disclosure. Consequently, the

restrictions which the disclosure order imposed on the applicant cannot

reasonably be considered to have been "necessary in a democratic

society".

CONCLUSION

70. The Commission concludes, by 11 votes to 6, that there has been

a violation of Article 10 (Art. 10) of the Convention.

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

Or. English

DISSENTING OPINION OF MR. S. TRECHSEL JOINED BY

MM. C. A. NØRGAARD, F. ERMACORA, G. JÖRUNDSSON, H. G. SCHERMERS

AND J.-C. GEUS

Contrary to the majority, I have come to the conclusion that the

facts of the present case do not disclose a violation of Article 10 of

the Convention.

I agree that there has been an interference with the applicant's

rights under Article 10. This means that I agree with the basic

principle that a journalist has a legitimate interest in protecting his

sources of information.

However, this legitimate interest may enter into conflict with

other legitimate interests such as the protection of private life,

economic well-being, national security etc. In my view the majority

of the Commission has given too much weight to the interest of a

journalist in protecting his sources as an element of freedom of

expression. I am of the opinion, having regard to the duties and

responsibilities referred to in Article 10, that the protection of a

journalist's sources is only justified in cases where the disclosure

of confidential information clearly serves a public interest. In cases

where, for example, an abuse of office, corruption or any other

perversion of private or public power is in issue, the journalist

should not be compelled to disclose his sources.

In the present case the information concerned a corporation which

employed approximately 400 persons and was engaged in a delicate

financial operation designed to avert its economic collapse.

Disclosure of these plans was likely to frustrate the efforts to save

X Ltd.

The appearance of a leak in the corporation must be regarded as

an extremely important issue for X Ltd. On the other hand, I fail to

see a public interest of any weight in having the kind of secret

information in question published.

When weighing the applicant's interests in not disclosing his

sources in order to be able to inform the public of confidential

matters against the interest of X Ltd. to have the sources disclosed

in order to avoid further harm being done, I find that the latter

clearly outweighs the former. In my opinion, therefore, the

interference with the applicant's freedom of expression could be

regarded as necessary for the protection of the rights of others and

for preventing the disclosure of information received in confidence.

Appendix I

HISTORY OF THE PROCEEDINGS

Date Item

________________________________________________________________

27.09.90 Introduction of the application

26.11.90 Registration of the application

Examination of admissibility

07.04.92 Commission's decision to invite the parties to

submit observations on the admissibility and

merits

18.08.92 Government's observations

03.12.92 Applicant's reply

11.12.92 Commission's grant of legal aid

02.04.93 Commission's decision to invite the parties to

an oral hearing

07.09.93 Hearing on admissibility and merits

07.09.93 Commission's decision to declare the application

admissible

Examination of the merits

07.09.93 Commission's deliberations

25.10.93 Government's observations

10.01.94 Consideration of the state of proceedings

01.03.94 Commission's deliberations on the merits, final

votes and adoption of the Report

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GOODWIN v. the UNITED KINGDOM

GOODWIN v. the UNITED KINGDOM

LEXI