Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 17488/90

by William GOODWIN

against the United Kingdom

The European Commission of Human Rights sitting in private on

7 September 1993, 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

Mr. M. de SALVIA, Deputy Secretary to the Commission

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 27 September 1990

by William GOODWIN against the United Kingdom and registered on 26

November 1990 under file No. 17488/90;

Having regard to:

- reports provided for in Rule 47 of the Rules of Procedure of the

Commission;

- the observations submitted by the respondent Government on

18 August 1992 and the observations in reply submitted by the

applicant on 3 December 1992;

- the parties' submissions at the oral hearing before the

Commission on 7 September 1993;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a British citizen born in 1966 and resident in

London. He is represented before the Commission by Mr. Geoffrey

Bindman, a solicitor practising in London.

The facts of the present case, as submitted by the parties and

which may be deduced from documents lodged with the application, may

be summarised as follows.

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

for the publication "The Engineer".

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.

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.

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

its confidential Corporate Plan which had gone missing on 1 November

1989. On 7 November 1989 X Ltd. applied for and obtained an ex parte

interim injunction to restrain the publishers of "The Engineer"

publishing any information derived from the Corporate Plan.

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.

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.

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").

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.

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

relevant journals of the injunction.

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.

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 Hoffman 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.

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.

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.

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.

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.

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 McGowan 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.

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

8 March 1990.

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).

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 ..."

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 ..."

Lord Templeman concurring also commented that the applicant ought

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

damaging".

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

contempt.

RELEVANT DOMESTIC LAW AND PRACTICE

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."

COMPLAINTS

The applicant invokes Article 10 para. 1 of the Convention. He

submits that the disclosure order made by the High Court and confirmed

on appeal constituted an interference with his freedom of expression

by a public authority. According to the applicant, the order has a

chilling effect on the likelihood of sources communicating information

to journalists such as himself, and his right to impart information to

the public has also been impaired thereby.

The applicant contends that the disclosure order was not

prescribed by law, since it was based on the general law under which

an order can be made for the disclosure of the identity of a wrong-doer

and the provisions of Section 10 of the 1981 Act. The requirements of

foreseeability were not satisfied in these circumstances. Further,

while conceding that the order pursued the legitimate aim of protecting

the rights of others, namely, X Ltd., the applicant considers that

there was no pressing social need for the restraint, since X Ltd. was

already protected by the injunction against leakage of confidential

information. The restraint was also not proportionate to the aim,

since it has cast a disproportionate chilling effect on the free flow

of information generally.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 27 September 1990 and

registered on 26 November 1990.

On 7 April 1992, the Commission decided to communicate the

application to the respondent Government and to ask for written

observations on the admissibility and merits of the application.

The Government's observations were submitted on 18 August 1992

after one extension in the time-limit and the applicant's observations

in reply were submitted on 3 December 1992 after two extensions in the

time-limit.

On 11 December 1992, the Commission decided to grant legal aid

to the applicant.

On 2 April 1993, the Commission decided to invite the parties to

make further observations on the admissibility and merits of the

application at an oral hearing.

At the hearing, which took place on 7 September 1993, the

Government were represented as follows:

Mr. Iain Christie Agent

Mr. Michael Baker QC Counsel

Mr. Oliver Parker Adviser, Lord Chancellor's Department

The applicant was represented as follows:

Mr. Geoffrey Robertson QC Counsel

Mr. Geoffrey Bindman Solicitor

Mr. Robert Sack ) Lawyers from Gibson, Dunn & Crutcher, New

Ms. Anne Hilker ) York

The applicant was also present.

THE LAW

The applicant complains that the disclosure order imposed by the

High Court constituted an interference with his right to freedom of

expression contrary to Article 10 (Art. 10) of the Convention.

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

"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 authorities 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."

The applicant submits that the disclosure order made by the High

Court and confirmed on appeal constituted an interference with his

freedom of expression guaranteed by Article 10 (Art. 10) of the

Convention. According to the applicant, the order has a chilling effect

on the likelihood of sources communicating information to journalists

such as himself, and his right to impart information to the public has

also been impaired thereby.

The applicant contends that the disclosure order breached his

duty of confidentiality to his source and was not "prescribed by law",

since 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" 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. Further, the

applicant considers that there was no pressing social need for the

restraint, since X Ltd. was already protected by the injunction against

publication of confidential information in the press and had made no

use of alternative means of identifying the source. The restraint was

also not proportionate to the aim, since it included the threat to the

applicant of up to two years' imprisonment and has cast a

disproportionate chilling effect on the free flow of information to the

public generally.

The Government accept that the action of the courts amounted to

a restriction on the applicant's freedom of expression within the scope

of the first paragraph of Article 10 (Art. 10). The Government submit

however that the interference was "prescribed by law" within the

meaning of the second paragraph, and refer to domestic case-law as

indicating that the relevant principle is well-established, accessible

and foreseeable in its application and consequences.

The Government further submit that the interference was

"necessary in a democratic society" for the purpose of protecting the

rights of others and for preventing the disclosure of information

received in confidence. They submit that Section 10 of the 1981 Act

gives recognition to the high public importance of protecting the free

flow of information to the press and provides a heavy presumption

against ordering disclosure. The interest of protecting journalistic

sources cannot however outweigh all others and, they argue, in the

assessment of whether "the interests of justice" required disclosure

in this particular case, the domestic courts gave full and reasoned

consideration to all the competing interests. The Government contend

that having regard to the margin of appreciation, accorded to

Contracting States, there is no ground on which the Commission in its

supervisory jurisdiction can substitute its own opinion for that of the

courts.

The Commission considers that the applicant's complaints under

Article 10 (Art. 10) of the Convention raise complex issues of fact and

law, the determination of which should depend on a full examination of

the merits. These complaints cannot therefore be regarded as manifestly

ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention. No other ground for declaring the case inadmissible has

been established.

For these reasons, the Commission, by a majority,

DECLARES THE APPLICATION ADMISSIBLE without prejudging the

merits.

Deputy Secretary to the Commission President of the Commission

(M. DE SALVIA) (C.A. NØRGAARD)

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GOODWIN v. THE UNITED KINGDOM

GOODWIN v. THE UNITED KINGDOM

LEXI