June 24, 2020
The recent judgment by Mann J in the case of Various Claimants v News Group Newspaper Ltd  EWHC 1435 (Ch) illustrates that a journalistic source can be entitled to protection under s.10 Contempt of Court Act 1981 (CCA) even when their identity is already known.
The claimants had commenced proceedings against the defendant, the publisher of the Sun newspaper. As part of these proceedings the defendant had been ordered to provide disclosure of payment records and email correspondence with a journalist who had provided tips and stories to the defendant in exchange for payment. The defendant disclosed 79 emails and withheld 1474 emails and 49 payment records on the basis that those documents were withheld in order to protect a confidential source under s.10 CCA. From the initial disclosure received the claimants were able to correctly identify the journalist as one who worked for another paper and was moonlighting by supplying tips to the Sun.
The claimants then applied to the High Court for provision of the withheld records and emails on the basis that: (i) the journalist could not be a confidential source because he was conducting a commercial enterprise in supplying tips; and (ii) it was unlikely that the journalist could be considered a confidential source in respect of every tip he had provided as there was no confidentiality agreement between the journalist and the defendant.
Protection under s.10 CCA
Mann J held that the payment records and emails which the defendant sought to protect were prima facie protected under s.10 CCA because the material was material provided to a publisher with a view of possible publication and would link to the journalist as its source. Whilst the source was not at risk of identification because he had already been identified, his being the source of that particular material had not been established and could therefore still be protected under s.10 CCA.
Mann J confirmed that the fact that the source was a journalist, that he was being paid for the tips and that he was providing tips on a large scale was irrelevant and did not prevent the engagement of the protection under s.10 CCA.
Interests of justice exception
Under s.10 Contempt of Court Act 1981, the court cannot require someone to disclose a journalistic source unless the disclosure is necessary in the interests of justice, national security or for the prevention of crime.
In considering the interests of justice exception in this case, Mann J held that confidentiality was a relevant factor and applied the judgment in Sanoma, holding that a source does not need to have the benefit of a written confidentiality agreement, although a mere assertion of a confidentiality arrangement would be susceptible to challenge. In this case, Mann J held that although the journalist was basically equivalent to a freelance journalist and therefore would not usually be entitled to source protection, in the context of this case there had been a promise of confidentiality to the journalist despite there being no written agreement, as the journalist would not have wanted his other employer to know that he was moonlighting for the Sun.
Mann J held that the interests of justice in this case were not sufficient to overcome the “ostensible right of source protection” but the blanket withholding of documents by the defendant was not required as the identity of the journalist was already known. It was only the particular information the journalist had supplied which was unknown. Mann J therefore ordered the defendant to provide the claimants with redacted copies of the withheld documents, redacting only material which might identify the journalist as the source of particular information. Mann J also held that the journalist’s continuing anonymity in the proceedings was unsustainable as his identity was already known.
This case illustrates that a journalist can be protected as a confidential source where there is a promise of confidentiality and that the particular information provided by a journalistic source can still be protected under s.10 CCA even where the identity of the source is known.