Media Law 20: Protecting sources and source material

Question 1

basic media law principle on protecting sources

[1]

Answer 1

• if sources didn’t come forward because they though journalists couldn’t protect their identities then there would be huge amounts of info the public should know that would never be revealed

Question 2

main legal provisions (acts) under which journalists can be forced to reveal sources
[4]

Answer 2

• Contempt of Court Act 1981
• Police and Criminal Evidence Act 1984 (PACE)
• Official Secrets Acts
• Terrorism Act 2000

Question 3

how does a journalist being question in court differ from other people?
[1]

Answer 3

• if they refuse to answer a question (because they are protecting sources) it’s NOT instantly contempt of court like anyone else who doesn’t answer a question

Question 4

in what circumstances can a journalist not answering a question become contempt of court?
[3]

Answer 4

• national security
• interest of justice
• preventing crime / disorder

Question 5

how is European Court affecting decisions?

[2]

Answer 5

• protecting sources is part of Art 10 (“freedom of expression”)
• ruled recent attempts to force disclosure of sources unlawful

Question 6

how much of a grey area is the national security argument?

[2]

Answer 6

• NOT AT ALL

- X Ltd v Grampian (1991): ‘almost automatic’

Question 7

Secretary of State for Defence v Guardian Newspapers (1985)

[5]

Answer 7

• Guardian published arrival of cruise missiles based on leaked memo
• Gov’t wanted document back, but that meant revealing source
• Guardian argued the info they’d published did NOT compromise national security
• Gov’t argued having civil servants willing to leak military info WAS compromising national security
• Lords agreed, source disclosed, Sarah Tisdall got 6 months

Question 8

how much of a grey area is the interests of justice argument?
[3]

Answer 8

• fairly grey, but less lenient than media would hope
• originally assumed this affected active/planned cases
• X Ltd v Grampian (1991): disclosure necessary to enable someone to ‘exercise important legal rights and to protect themselves from serious legal wrongs’

Question 9

factors considered before forced disclosure of sources ‘in the interests of justice’
[2]

Answer 9

• nature of information (i.e. bigger the public interest, less likely to forced disclosure)
• method of obtaining info (legitimate methods less likely to force disclosure)

Question 10

example of where illegally obtaining info could still NOT force disclosure
[1]

Answer 10

• uncovering a wrongdoing

Question 11

X Ltd v Grampian (1991)

[4]

Answer 11

• trainee reporter (on The Engineer) Bill Goodwin told that Tetra was in financial difficulties
• put it to Tetra, who realised his source had a confidential document
• Tetra argued source should be disclosed in ‘interests of justice’ so they could bring proceedings to get document returned
• Lords agreed

Question 12

what happened after X Ltd v Grampian (1991)?

[3]

Answer 12

• Goodwin refused to disclose source, fined 5,000 for contempt of court
• took case to ECtHR: Goodwin v UK (1996)
• ruled UK in breach of Art 10, and public interest of not disclosing sources outweighed Tetra’s case

Question 13

other examples of source disclosure cases based on the ‘interests of justice’
[5]

Answer 13

• Camelot Group plc v Centaur Communications Ltd (1999)
• Ashworth Security Hospital v MGN Ltd (2002)
• Merseyside NHS Trust v Ackroyd (2006)
• John v Express Newspapers (2000)
• Financial Times Ltd & Ors v UK (2009)

Question 14

Camelot Group plc v Centaur Communications Ltd (1999)

Answer 14

• Camelot employee leaked draft accounts (putting directors in bad light) to Marketing Week
• court ruled disclosing source (disloyal employee) outweighed public interest argument

Question 15

Ashworth Security Hospital v MGN Ltd (2002)

[4]

Answer 15

• Mirror paid journalist for story on Ian Brady being force fed at Ashworth
• Mirror refused to reveal identity of journalist because this would lead to source being disclosed
• case went to Lords who ordered journalist disclosed
• freelancer Robin Ackroyd then came forward voluntarily

Question 16

Mersey NHS Trust v Ackroyd

[4]

Answer 16

• hospital took Ackroyd to court
• High Court refused to make him disclose sources
• he was a responsible journalist, source had not acted on money, security had been tightened making new leak unlikely
• public interest + ‘no pressing social need’ for disclosure

Question 17

Financial Times and Ors v UK (2009)

[2]

Answer 17

• previously: disgruntled Interbrew employee had leaked presentation, Lords ordered media should disclose them because they were ‘maleficent’ and ‘calculated to do harm’
• ECtHR held appeal, saying Interbrew’s needs were outweighed by public interest of protecting sources

Question 18

what more trivial reason might courts give to NOT force disclosure in interests of justice
[1]

Answer 18

• claimant hadn’t looked into alternative ways to identify source, so going too court not ‘necessary’ yet

Question 19

example of an overly hasty claimant trying to get courts to force disclosure of sources
[2]

Answer 19

• Elton John: John v Express Newspapers (2000)

- details of his accounts leaked, he went straight to court

Question 20

obvious (general) example of order of source disclosure to ‘prevent crime’
[1]

Answer 20

• identifying the source would stop a planned crime from happening

Question 21

wider view on disclosure to ‘prevent crime’ by courts

[1]

Answer 21

• like national security, ‘almost automatic’

Question 22

problems with PACE laws covering info required by the police

[3]

Answer 22

• police can demand access to any journalist info that might help with investigation
• puts reporters/photographers at risk in violent situations where participants might be ID’d later
• sources dubious about confidentiality in situations where police can demand info

Question 23

do journalists have to answer police’s questions?

[3]

Answer 23

• NO, no one does
• many believe this counts as obstructing the police, NOT SO!
• you must be ‘wilfully’ obstructing (i.e. obstructing without legal reason to do so)

Question 24

what aren’t you allowed to tell police

[1]

Answer 24

• false / misleading info

Question 25

how can police get the info they want?

[2]

Answer 25

• they have to go to court (using powers under PACE)

- but even then that only includes documents or recorded info

Question 26

how do rules on police seizure of journalist materials differ to non-journalistic stuff
[2]

Answer 26

• stricter

- e.g. police must apply to circuit judge rather than magistrate

Question 27

how does PACE define journalistic materials?

[4]

Answer 27

• records or documents
• ‘acquired or created for the purposes of journalism’
• held in the possession of the person who acquired or created it for those purposes
• includes research material as well as actual copy

Question 28

what counts as ‘excluded material’ from police seizures

Answer 28

• material held under an ‘undertaking, restriction or obligation of confidence’
• includes material given on condition that source not revealed
• confidence has to be in place from point at which material acquired

Question 29

DEF: all other (non-confidential journalistic material)

Answer 29

• special procedural material

Question 30

DEF: what the police need to get from circuit judge to seize journalistic material

Answer 30

• production order (OR search warrant, in some cases)

- application must be known to media, right to representation

Question 31

what needs satisfying before production order for excluded material is granted? what are the results of this?
[4]

Answer 31

• reasonable grounds for believing material on premises
• search warrant would have been likely under pre-PACE legislation
• this makes it very rare that excluded material will ever be seized
• exceptions: stolen material, Official Secrets Act

Question 32

what needs satisfying before production order for special procedure material is granted?
[5]

Answer 32

• serious offence has been committed
• it’s on the premises
• likely to be of substantial value to investigation, and then admissible evidence
• other attempts failed or were bound to fail
• in public interest

Question 33

who does the ‘public interest’ argument when applying for production order for special procedure material?
[1]

Answer 33

• police more often than journalists (surprisingly), if previous court decisions are anything to go by

Question 34

Bright v Central Criminal Court (2001)

[3]

Answer 34

• police applied for correspondence between reporter and David Shayler (ex-MI5 accusing them of wrongdoing)
• order initially granted BUT overturned by divisional court
• journalistic material should not be seized if involved in genuine investigation into ‘corrupt or reprehensible activities’ by public body, UNLESS in public interest (this was not)

Question 35

when (and why) do police seek search warrants?

[3]

Answer 35

• usually when production orders refused (but often initially too)
• don’t have to alert journalist
• no right to put case against warrant to a judge
• police can remove any material from premises, without having to go back to court

Question 36

what do police need to prove to get search warrant?

[5]

Answer 36

• original stuff in PACE, plus ONE of following:
• not practicable to communicate with anyone who can grant access to premises
• not practicable to communicate with anyone who can grant access to material
• info subject to restriction on disclosure / obligation to secrecy, and will likely be disclosed
• serving notice of order might seriously prejudice investigation

Question 37

new warrant under Serious Organised Crime and Police Act 2005
[4]

Answer 37

• ‘all premises’ warrant
• warrant to search any premises occupied/controlled by a person
• could mean journos’ workplace and home
• judge must be satisfied that it’s not practicable for police to name all premises they need to search, and there’s reasonable grounds to search them

Question 38

advice to journos trying to keep documents from police

[2]

Answer 38

• after production order applied for, destruction becomes contempt of court
• BEFORE then it’s not, so try destroying them if you suspect the police will want them

Question 39

Official Secrets Acts

[3]

Answer 39

• police can demand materials (w/o going to judge in ‘emergency’ cases)
• police can search any premesis and remove material related to Acts
• illegal not to return gov’t docs to gov’t official when asked to do so

Question 40

most significant change brought in by Terrorism Act 2000

[1]

Answer 40

• right to not answer police questions does NOT count in terrorism cases

Question 41

main ways in which Terrorism Act 2000 affects journalists

[5]

Answer 41

• MUST reveal info about terrorists as soon as you get it
• MUST reveal info about funding of terrorism
• illegal to collect/record/possess info (inc. photos) that might aid a terrorist attack
• illegal to disclosure info about / interfere with investigation into likely terrorist attack

Question 42

defence against Terrorism Act 2000

[1]

Answer 42

• ‘reasonable excuse’ not to disclose info (undefined in Act)

Question 43

what must judge be satisfied of before ordering seizure of journalistic materials under Terrorism Act 2000?
[5]

Answer 43

• material is either excluded or special procedure
• does not include material subject to legal privilege
• for purposes of terrorism investigation
• substantial value to terrorist investigation
• public interest

Question 44

case of Shiv Malik (2008)

Answer 44

• journalist refusing to hand over materials used for writing book on terrorism
• court agreed original order was too wide, limited to just info on specific terrorist
• Malik risked committing offence under Terrorism Act 2000, but police did not charge

Question 45

Sally Murrer case (2008)

[3]

Answer 45

• police arrested her and 3 others (inc. former police lover and friend) for leaking info to media
• included Met police bugging of Sadiq Khan
• judge said police breached Art 10 of HRA and were bringing criminal action stop info they didn’t want coming out