Category: Journalists’ sources

Source of contention | Media Law Journal

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| General, Journalists' sources

When – if ever – should journalists be forced to disclose their confidential sources?

It’s been a hot issue lately. The Crown applied to court for an order requiring TV3 to provide identifying information of the Waiouru Army Medals thief after John Campbell’s anonymised TV interview with him. The Serious Fraud Office compelled the National Business Review to turn over notes and tapes made during its scoop on South Canterbury Finance. The government had to fend off accusations that its new Search and Surveillance Bill did not properly protect journalists’ confidential sources. …

The Evidence Act [a href=”http://www.legislation.govt.nz/act/public/2006/0069/latest/DLM393681.html”here] provisions are fairly new, and got their first run in the Campbell case (which doesn’t seem to be available online). TV3 argued that if they were ordered to turn over information identifying their interviewee, then their sources would “dry up”. The Crown asked me to give evidence about whether that was true. What hard evidence is there of this “chilling effect” on confidential sources?

My evidence is here … [and the] cases, reports and articles I’ve drawn on are listed at the end.

I found the exercise fascinating. It quickly became obvious there is no hard evidence. If sources don’t come forward, we don’t find out, and we can’t know why they didn’t.

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Campbell’s costs and journalists’ sources

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| ECHR, Freedom of Expression, journalism, Journalists' sources, Privacy

Naomi Campbell“Even the judges know who Naomi Campbell is”. At least Baroness Hale of Richmond does, since this is how she began her speech in Campbell v MGN [2004] AC 457, [2004] UKHL 22 (6 May 2004), in which she was a member of the majority which held that aspects of the Mirror‘s coverage of Naomi Campbell’s fight against narcotics addiction – in particular, the publication of photographs which did not advance the public interest in the story – infringed her privacy. Today, in MGN v UK 39401/04 (18 January 2011) the Fourth Section of the European Court of Human Rights (ECHR) held that this holding did not infringe Article 10 of the European Convention on Human Rights. Campbell was awarded £3,500 for that invasion of privacy. For the appeal to the House of Lords, she had retained solicitors and counsel pursuant to a conditional fee agreement (“CFA”) which provided that if the appeal succeeded, solicitors and counsel should be entitled to success fees of 95% and 100% respectively. For the appeal to the House of Lords, legal fees were £288,468; and the success fees were £279,981.35; so the total fees were £594,470. Adding in the fees at first instance and before the Court of Appeal, Campbell’s costs amounted to a total of £1,086,295.47.…

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Fast cars and journalists’ sources

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| ECHR, Freedom of Expression, journalism, Journalists' sources

Cover of Autoweek via their websiteIn Sanoma Uitgevers BV v The Netherlands Application no 38224/03 (14 September 2010) (Inforrm’s Blog | Index on Censorship Free Speech Blog | JuraBlogs), the Grand Chamber of the European Court of Human Rights (ECHR) has held that an order for the compulsory surrender of journalistic material which contained information capable of identifying journalistic sources requires legal procedural safeguards commensurate with the importance of the principle at stake. This is an important standard, and the actions of the Dutch authorities failed to meet it. An order to disclose journalistic material was made by a public prosecutor, whom the Court considered to be a party rather than impartial, so that there was no independent assessment as to whether the interest of a criminal investigation overrode the public interest in the protection of journalistic sources. As a consequence, the Court unanimously held that there was a violation of Article 10 of the European Convention on Human Rights.

The case concerned illegal car races being investigated by the Dutch magazine Autoweek, published by Sanoma Uitgevers BV. The journalists took photographs and made notes, but edited the published photographs to guarantee the anonymity of the participants in the race.…

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The Irish Times goes to Strasbourg

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| ECHR, Freedom of Expression, Journalists' sources

ECHR, via the ECHR siteStrasbourg is a beautiful city: it possesses a magnificent gothic cathedral; the Grande île is a UNESCO World Heritage site; and it is home to many European institutions, including the the European Court of Human Rights (ECHR, pictured left). It is a city with which Geraldine Kennedy, the Editor of the Irish Times, and Colm Keena, that paper’s Public Affairs Correspondent, will become very familiar, as they bring an exceedingly important case to the ECHR.

In Mahon Tribunal v Keena (No 1) [2009] 2 ILRM 373, [2009] IESC 64 (31 July 2009), the Supreme Court held that the Irish Times would not be compelled to disclose the source of a leaked Tribunal document which it had destroyed rather than produce to the Tribunal. Reversing the High Court ([2007] IEHC 348 (23 October 2007)), Fennelly J for a unanimous Supreme Court held:

68. Looking at the High Court judgment as a whole, I have come to the conclusion that the great weight which it attached to the reprehensible conduct of the appellants in destroying documents led it to adopt an erroneous approach to the balancing exercise.

69. According to the reasoning of the European Court in Goodwin [v United Kingdom 17488/90, (1996) 22 EHRR 123, [1996] ECHR 16 (27 March 1996)], an order compelling the appellants to answer questions for the purpose of identifying their source could only be “justified by an overriding requirement in the public interest.”

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Birthday Times

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| criminal libel, General, Journalists' sources


Masthead of first edition of the Times, via the Times archive



The above image is the front page of the first ever Times newspaper, first published as the Universal Daily Register on 1 January 1785. From today’s Times Online:

The Times celebrates its 225th birthday

How a former bankrupt with a big idea started a feeble rumbling that became The Thunderer

On this day 225 years ago the very first issue of a newspaper that would soon be renamed The Times appeared on the streets of London. … its beginnings were, to put it mildly, inauspicious … Yet the paper did survive, and prosper, thanks in part to the energy and vision of its creator, John Walter, a former coal merchant, entrepreneur and Lloyd’s underwriter who had declared himself bankrupt after he was ruined by a combination of the American War of Independence and a Jamaican hurricane. …

In 1789 he was put on trial for libelling the Duke of Clarence and the Duke of Cumberland. He refused to reveal his sources, and was sentenced to a year in Newgate Prison, fined £50 and ordered to stand in the pillory at Charing Cross for an hour. This last part of the sentence was lifted, although editors of The Times have occasionally been pilloried since.

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The Irish Times should appeal the costs order to the ECHR – Part II

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| ECHR, Irish Law, Journalists' sources, prior restraint

Cover of fact sheet about the ECHR, via the ECHR websiteIn Mahon Tribunal v Keena [2009] IESC 64 (31 July 2009) (also here (pdf) (to which I will refer as Mahon Tribunal v Keena (No 1)) the Irish Times successfully resisted an attempt by the Mahon Tribunal to compel the Editor and Public Affairs Correspondent of the Irish Times to disclose the source of a leaked Tribunal document. However, in Mahon Tribunal v Keena [2009] IESC 78 (26 November 2009) (to which I will refer as Mahon Tribunal v Keena (No 2)), the Court held that the journalists should pay the Tribunal’s costs of more than €600,000.

In yesterday’s post, I argued that this was illogical: if the journalists had a privilege to with-hold the document and decline to answer the questions, then they had the privilege, and it doesn’t matter what they did with the document, and taking objection to its destruction by the journalists is neither here nor there. However, even if this might provide some justification for some punishment of the journalists, nevertheless, the European Court of Human Rights is very likely hold that this punishment is inconsistent with Article 10 of the European Convention on Human Rights. A crucial case in this respect is Cumpana and Mazare v Romania 33348/96, (2005) 41 EHRR 14, [2004] ECHR 692 (17 December 2004), where the Court held that although some penalty would have been appropriate, disproportionately severe sanctions infringed the applicant journalists’ Article 10 rights.…

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The Irish Times should appeal the costs order to the ECHR – Part I

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| ECHR, Irish Law, Journalists' sources

Classic front page of the Irish Times, via the Irish Times websiteIn a classic example of giving with one hand and taking away with the other, the Supreme Court first held that the Irish Times could assert a privilege to decline to answer questions from a Tribunal, but then ordered the paper to pay the Tribunal’s costs. This is, to say the least, a curious and illogical decision, and it is very doubtful whether the European Court of Human Rights would find it compatible with Article 10 of the European Convention on Human Rights.

According to a report in yesterday’s Sunday Tribune (see also Saturday’s Irish Times and the BBC News website) the Police Service of Northern Ireland (PSNI) have been ordered to pay 75% of the costs incurred by Suzanne Breen, Northern Editor of the Sunday Tribune, in successfully resisting the PSNI’s attempt to compel her to disclose her sources. The general rule, subject to the court’s discretion, is that costs follow the event, so Breen might reasonably have expected that the PSNI would have to pay all of her costs, but she seems to be satisfied with the decision that they should pay 75%.

Recall that in Mahon Tribunal v Keena [2009] IESC 64 (31 July 2009) (also here (pdf) (to which I will refer as Mahon Tribunal v Keena (No 1)) the Irish Times similarly resisted an attempt by the Mahon Tribunal to compel the newspaper to disclose the source of a leaked Tribunal document.…

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Two journalists’ conceptions of source privilege

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| General, journalism, Journalists' sources

Cover of Novak's autobiography In today’s Irish Times obituary of Robert Novak (pictured left, on the cover of his autobiography), there is an excellent summary of the Judith Miller affair. From the obituary (with added links):

Conservative US columnist revealed identity of CIA officer

… Six years ago, he crowned his long record of controversial disclosures by revealing the name and position of Valerie Plame, a clandestine CIA officer involved with intelligence on weapons of mass destruction. Her husband, Joseph Wilson, a former US diplomat, had enraged the Bush administration by publicly questioning the White House’s misuse of such intelligence to justify its invasion of Iraq.

Publishing Plame’s name broke federal law and there was a ferocious hunt for Novak’s source, which he stoutly refused to name. This witch-hunt eventually brought prison sentences for a New York Times reporter, Judith Miller, and for Lewis Libby, the chief of staff of former US vice-president Dick Cheney.

Under continuing pressure, Novak told all to a federal grand jury, naming the deputy secretary of state, Richard Armitage, and US president George W Bush’s political adviser Karl Rove as his sources. He justified his action on the basis that both officials had already identified themselves.

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