European Court of Human Rights- Article 10- Freedom of
European Court of Human Rights stated in the 1996 case of Goodwin
v. United Kingdom that “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.” (Goodwin
v. United Kingdom, 1996)
Therefore, protection of sources became a basic journalistic right.
Goodwin vs United Kingdom is a case of protecting a source who revealed
company secrets, which relates to the scenario Jasper and Alberta are in. In this
case, a trainee journalist received information about a financial status of a company.
The source who gave the information over the phone wished to stay anonymous and
came from a confidential corporate plan of which one copy went missing.
The company received orders preventing the applicant from disclosing the
confidential information and under s 10 Contempt of Court Act 1981 also an
order asking the applicant to reveal the identity of his source. The applicant
refused and was fined £5,000 for contempt. He complained of a violation of Article
10 of the convention.
In this case, the publication of the confidential information was
already prohibited by injunction, the order for disclosure of the source was
not necessary, and thus breached the Article 10 (Goodwin vs United Kingdom, 1996).
“If journalists are forced to reveal their sources the role of the press
as public watchdog could be seriously undermined because of the chilling effect
that such disclosure would have on the free flow of information.” (Goodwin vs. United Kingdom,1996).
Having said that, Alberta has a right for freedom of expression and for
the protection of her sources, in this case Jasper.
However, at the same time no promise of confidentiality can be absolute.
There are some moral obligations that dictate when sources must be identified (Robertson and Nicol, 2007:317).
Breach of confidence under the Human Rights Act 1998
One of the implications Jasper could face if he would be identified as a
source is breach of confidentiality. Confidentiality agreements are often
included in employment contracts. Individuals who speak to journalists are
often breaching the confidence which they owe to another third party and the
reason they are doing is because they know their names will be protected. In
this case, Jasper could lose his job or he could get sued by his employer. It’s
essential that the claimant proves that the breach would cause him harm, for
example if the information was not correct and it would cost him his reputation
or finances (Robertson and Nicol, 2007:269).
However, it’s very unlikely this would happen as it is a national
defence issue and public interest is very strong in this case, therefore if
proved the corruption was happening he wouldn’t be found guilty of breach.
Because of the Article 10 of HRA – Freedom of Expression, Alberta cannot
be forced to identify her source unless the court decides it is necessary in
terms of national security, stopping crime or ensuring fair trial. If this
happened to be the case and the legal prosecutor would order Alberta to
identify her source, she can still refuse to do it if she believes it would
violate Article 10. The court order that is forcing the journalist to identify
her source or to hand over any journalistic source material such as emails,
audio, video must use a third party to review whether the journalist must be
forced to reveal the information.
This is very unlikely to happen as courts are very unwilling to identify
that disclosure is in the interest of justice and will only be found in a few
cases where exceptional circumstances where vital public or individual
interests are at stake. (inbrief.co.uk,
To conclude, if Alberta had to reveal her source because of national
security issue, Jasper could get into trouble for breaching the confidence of
Contempt of Court Act 1981 s10
The section 10
of Contempt of Court Act 1981 gives journalists a privilege and restricts
courts from ordering journalists to reveal their sources, or finding people guilty
of contempt of court for refusing to disclose, unless it’s in the interests of
justice or for national security or for prevention of disorder or crime (Legislation.gov.uk,
Act protects journalists from unlawful orders of court. Alberta could only be
found guilty of contempt if the court ordered her to reveal her source for the
interests of national security and she would refuse and court would not find
the politician guilty of breach of the Article 10.
In this case, there has to be realistic evidence that national security
is imperilled and it has to be reviewed by a third party whether it is
essential to force her to reveal the source (Robertson
and Nicol, 2007:331).
Official Secrets Act 1989
The Official Secrets Act 1989 creates an offence for the unlawful disclosure of
information in six specific categories by employees and former employees
of the security and intelligence services, and for current and former Crown
Servants and Government contractors. (Everett,
Maer and Bartlett, 2017)
Jasper would know whether he is
or isn’t bound by Official Secrets Act as he would be notified by his employer
or in his contract. If he was bound by the Act and Alberta would be forced to
reveal his identity, he could be found guilty of breaching it.
“For employees or former employees of the security and intelligence
services, any unauthorised disclosure of a document or
information relating to security and intelligence is an offence.
However, a Crown Servant (e.g. civil servants, government ministers, members of
the armed forces or police) is only guilty of an offence if
they make an unlawful disclosure in one of the six categories which is
deemed “damaging”.” (Everett, Maer
and Bartlett, 2017)
That means the Government would have to undergo damage tests to prove
that the disclosure is damaging and to bring a prosecution under the Act 1989.
In conclusion, If Jasper isn’t bound by Official Secrets Act 1989 for
any reason, he cannot be found guilty of breaching it.
Defamation law 2013
Defamation law 2013 covers any statement that hurts someone’s
reputation. In most journalistic cases, it is libel- hurtful statement made in
writing. This applies to the case of Alberta and Jasper. Alberta could get sued
for libel if the information she published was false, even if she believed it
was true when publishing it. “A true statement, no matter how
harmful, is not considered defamation” (FindLaw,
To show an example of defamation case it is worth talking about W?grzynowski and Smolczewski v. Poland. In
this case, two lawyers sued journalists from daily newspaper Rzeczpospolita for
libel- the journalists claimed that the lawyers had made a fortune assisting
politicians in shady business deals and corruption. The allegations were based
on gossip and facts that haven’t been checked. As a result, the editor in chief
was fined £5,000 and had to publish an apology in the newspaper. This, of
course can often jeopardise the reputation of the publication and the
journalists (Buffa, 2016:301).
Because Jasper is not
sure whether the corruption is happening, Alberta can get into legal trouble-
get sued for label if the statement she published in her article was false.
To conclude, in this case absolute confidentiality cannot be promised
because the identity of the source might be needed for protecting national
security. There is a lot of legal implications both Alberta and Jasper could
face in the result, such as libel, breach of confidence, breach of the Official
Secrets Act 1989 and if refused disclosure, contempt of court. Therefore, my
advice to Alberta would be to never publish any information she doesn’t know
it’s 100 per cent correct, always double-check facts and make sure she knows
about all the legal implications she could face before making a final decision.
Jasper should make sure that he isn’t bound by Official Secrets Act and that he
isn’t providing Alberta with false information.
If Jasper passed confidential information about company that doesn’t pay
its taxes, there is a very small chance Alberta would be forced to reveal her
source. This is because it is not needed in terms of national security,
preventing crime or ensuring a fair trial. Because tax invasion is a criminal
offence, the company would be fined and they would have to pay their taxes
If the publication Alberta works for would publish an article about the
company’s tax avoidance, and the figures wouldn’t be correct or the information
provided wouldn’t be 100 per cent right, Alberta and the publication could be
sued for libel, under Defamation Act 2013. Therefore, it’s essential for every
journalist to cross-check their sources, double check information and only
publish something they’re certain it’s correct.
In this case, if the journalist has enough material to prove the tax
invasion and because public interest is already on the journalist’s side,
Alberta would not have to reveal her source because it is not a national