CONCURRING OPINION OF JUDGE DE MEYER

I fully agree with the Court’s conclusion that the order requiring the applicant to reveal his source and the fine imposed upon him for having refused to do so violated his right to freedom of expression. I would however observe that so did also, in my view, the earlier injunction against publication of the information [4] , since it was an utterly unacceptable form of prior restraint [5] .

Even if there had not been such an injunction the disclosure order and the ensuing fine would not have been legitimate. The protection of a journalist’s source is of such a vital importance for the exercise of his right to freedom of expression that it must, as a matter of course, never be allowed to be infringed upon, save perhaps in very exceptional circumstances, which certainly did not exist in the present case.

JOINT DISSENTING OPINION OF JUDGES RYSSDAL, BERNHARDT, THÓR VILHJÁLMSSON, MATSCHER, WALSH, SIR JOHN FREELAND AND BAKA

1. We are unable to agree that, as the majority conclude in paragraph 46 of the judgment, "both the order requiring the applicant to reveal his source and the fine imposed upon him for having refused to do so gave rise to a violation of his right to freedom of expression under Article 10 (art. 10)".

2. We of course fully accept that, as is recalled in paragraph 39 of the judgment, 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. We likewise agree that, as the paragraph goes on to say, "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". It follows that an order for source disclosure cannot be compatible with Article 10 (art. 10) of the Convention unless it is justified under paragraph 2 of that Article (art. 10-2).

3. Where we part company with the majority is in the assessment of whether, in the circumstances of the present case, such a justification existed - whether, in particular, the test of necessity in a democratic society should be regarded as having been satisfied.

4. As regards the test in domestic law, section 10 of the Contempt of Court Act 1981 clearly gives statutory force to a presumption against disclosure of sources. It provides (see paragraph 20 of the judgment) that no court may require disclosure "unless it be established to the satisfaction of the court that disclosure is necessary in the interests of justice or national security or for the prevention of disorder or crime".

5. As explained by Lord Bridge in the House of Lords in the applicant’s case, this 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. In asking himself the question whether disclosure of the source of some particular information is necessary to serve one of the interests in question, the judge has to engage in a balancing exercise: he must start "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". Dealing with the way in which the judge should determine necessity where, as here, the relevant interests are those of justice, Lord Bridge said that it would never be enough for a party seeking disclosure of a source protected by the section to show merely that he will be unable without disclosure to exercise a legal right or avert a threatened legal wrong. "The judge’s task will always be to weigh in the scales the importance of enabling the ends of justice to be attained in the circumstances of the particular case on the one hand against the importance of protecting the source on the other hand. In this balancing exercise it is only if the judge is satisfied that disclosure in the interests of justice is of such preponderating importance as to override the statutory privilege against disclosure that the threshold of necessity will be reached."

6. Given that, as the judgment accepts, the protection of Tetra’s rights by way of the "interests-of-justice" exception amounts to the pursuit of a legitimate aim under paragraph 2 of Article 10 (art. 10-2), the domestic-law test of necessity strikingly resembles that required by the Convention. The domestic courts at three levels, on the basis of all the evidence which was before them, concluded that disclosure was necessary in the interests of justice. Factors which Lord Bridge stressed, in support of his conclusion that the judge at first instance and the Court of Appeal were right in finding that the necessity for disclosure in the interests of justice was established, were the following. First, the importance to Tetra of obtaining disclosure lay 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 operations were still continuing. This threat could only be defused if they could identify the source as himself the thief of the stolen copy of the plan or as a means to lead to identification of the thief and thus put themselves in a position to institute proceedings for the recovery of the missing document. Secondly, the importance of protecting the source was much diminished by the source’s complicity, at the very least, in a gross breach of confidentiality which was not counterbalanced by any legitimate interest which publication of the information was calculated to serve. In this view of the balance, disclosure in the interests of justice was clearly of preponderating importance so as to override the policy underlying the statutory protection of sources and the test of necessity for disclosure was satisfied.

7. The judgment, on the other hand, concludes that there was not a reasonable relationship of proportionality between the legitimate aim pursued by the disclosure order and the means deployed to achieve that aim (paragraph 46). In reaching this conclusion, the judgment first says (rightly), in paragraph 42, that the justifications for the disclosure order have to be seen in the broader context of the injunction which Tetra had already obtained. That injunction was effective in stopping dissemination of the confidential information by the press, so that a "vital component of the threat of damage to the company had ... already largely been neutralised ...". "This being so", the paragraph continues "... in so far as the disclosure order merely served to reinforce the injunction, the additional restriction on freedom of expression which it entailed was not supported by sufficient reasons for the purposes of paragraph 2 of Article 10 (art. 10-2) ..".

8. To suggest, however, that the disclosure order may have "merely served to reinforce the injunction" is to misstate the case. As the decisions of the domestic courts explain, the purpose of the disclosure order was to extend the protection of Tetra’s rights by closing gaps left by the injunction. The injunction bit upon the press, but it would not effectively prevent publication to Tetra’s customers or competitors directly by the applicant’s source (or that source’s source). Without knowing the identity of the source, Tetra would not be in a position to stop further dissemination of the contents of the plan by bringing proceedings against him for recovery of the missing document, for an injunction prohibiting further disclosure by him and for damages. Nor would they be able to remove any threat of further harm to their interests from a possible disloyal employee or collaborator who might enjoy continued access to their premises.

9. These further purposes served by the disclosure order are considered in paragraphs 44 and 45 of the judgment. The latter paragraph, after recalling that the considerations to be taken into account by the Convention institutions for their review under paragraph 2 of Article 10 (art. 10-2) "tip the balance of competing interests in favour of the interest of democratic society in securing a free press", asserts that Tetra’s interests in securing the additional measures of protection sought through the disclosure order were insufficient to outweigh the vital public interest in the protection of the applicant’s source.

10. No detailed assessment of these interests of Tetra’s is, however, undertaken, and in the absence of it there is no satisfactory basis for the balancing exercise which the Court is required to undertake. The domestic courts were, in any event, better placed to evaluate, on the basis of the evidence before them, the strength of those interests, and in our view the conclusion which they reached as to where, in the light of their evaluation, the corresponding balance should be struck was within the margin of appreciation allowed to the national authorities.

11. We therefore conclude that neither the disclosure order nor the fine imposed upon the applicant for his failure to comply with it gave rise to a violation of his right to freedom of expression under Article 10 (art. 10).