A High Court judgment at the end of May 2017 in favour of Sir Cliff Richard against the BBC illustrates how the principle that a journalist must protect their sources has its legal limits.


Ryan Dunleavy
Ryan Dunleavy
Partner & Head of Media Law Reputation Management

In the above case the Court ordered the BBC to disclose whether or not its information that Sir Cliff was under investigation by South Yorkshire Police came from Operation Yewtree, which is the Metropolitan Police’s investigation into historic sex offences.

The background to Sir Cliff’s application was neatly summarised by the judgment in this way:

‘On 14th August 2014 his flat in Sunningdale was raided by the South Yorkshire Police (the second defendant - "SYP") seeking material in connection with an investigation of child abuse. Mr Dan Johnson, a journalist working for the first defendant, had been told of the raid in advance, and as a result the BBC was able to be in place to cover it as it happened, which it did with journalists, photographers and a helicopter. It was thus able to broadcast its occurrence more or less concurrently and did so, giving apparently extensive coverage both at the time and subsequently. In due course the police announced that there would be no further investigation into Sir Cliff.’

The judgment was part of a larger High Court case by Sir Cliff against the BBC for alleged breaches of his privacy rights and his rights under the Data Protection Act 1998.

Sir Cliff has argued in his claim that BBC journalist Dan Johnson found out about the existence of an investigation into him from a person involved in, or from a person associated with, Operation Yewtree. Both Sir Cliff and South Yorkshire Police said that Mr Johnson was able to use information about Sir Cliff being the subject of the Yewtree investigation to get more information out of South Yorkshire Police, particularly to provide Mr Johnson with advance information of the raid.

In relation to protecting its source, the BBC pleaded in its Defence to Sir Cliff’s overall claim,

‘The BBC asserts its right and the rights of its reporter Mr Johnson, to withhold information which may lead to the identification of the Confidential Source… and any information tending to identify the Confidential Source, including whether the Confidential Source was from within Operation Yewtree (which is neither confirmed nor denied)…

‘The source was not an open source. The source provided information to Mr Johnson in confidence and on condition that Mr Johnson would protect the source's identity. These are familiar attributes of a confidential journalistic source.’

The importance of protecting a source is recognised by section 10 of the Contempt of Court Act 1981. It is also a right protected by Article 10 of the European Convention on Human Rights (freedom of expression). Protecting a source is regarded as a ‘negative right’ for the purposes of Article 10 – ie, a right not to be compelled to provide information.

The European Court of Human Rights explained in the case of Goodwin v United Kingdom (1996) that, ‘… limitations on the confidentiality of journalistic sources call for the most careful scrutiny by the Court,’ and the judge in Sir Cliff’s case took the above into account, although ultimately ruled that Sir Cliff’s matter was not a Goodwin-type case.

The Court when making its decision struck a balance between the journalist’s Article 10 rights and Sir Cliff’s Article 6 right (right to a fair trial) and Article 8 right (right to respect for private and family life). It decided that the risk that the answer to Sir Cliff’s question would lead to the source of the BBC’s information being identified was very low but could not quite be regarded as non-existent. The Court also considered that the information was likely to be something that the source would be uncomfortable with having disclosed (ie, that there would be a ‘chilling effect’). This was diminished however by the fact that Operation Yewtree had already been suggested as the source.

Balanced against the above was the fact that the journalist’s knowledge of the source was of real significance, which will not be fully revealed until the trial of this case. The Court ruled that the information is something that Sir Cliff may well need in order to be able to make his case, or to rebut one of the BBC's defences, or to improve his chances of success. The Court also weighed in the balance that Sir Cliff had a procedural right to the information under normal principles of disclosure. The Judge ruled that, ‘A fair trial, with the benefit of being able to argue that which can legitimately be argued, requires that the question [posed by Sir Cliff] be answered.’

In striking a balance between the above competing points, the Court found that the balance came down clearly in favour of the question being answered.

The lesson for journalists to take from this judgment is that there are limits to how far they can protect their sources.

We Can Help

At MW Solicitors, our mission is “To make quality legal services accessible to everyone” including Journalists and other media professionals who need representation in Court or wish to protect the anonymity of their sources of information.

If you are worried about having to divulge your sources in an impending legal case or need representation talk to one of our team today, call us on 0203 551 8500 or email us at enquiries@mwsolicitors.co.uk.

 

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