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You are here: BAILII >> Databases >> European Court of Human Rights >> GOODWIN v. THE UNITED KINGDOM - 17488/90 [1996] ECHR 16 (27 March 1996)
URL: http://www.bailii.org/eu/cases/ECHR/1996/16.html
Cite as: 1 BHRC 81, [1996] ECHR 16, 22 EHRR 123, (1996) 22 EHRR 123

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In the case of Goodwin v. the United Kingdom (1),

The European Court of Human Rights, sitting, in pursuance of

Rule 51 of Rules of Court A (2), as a Grand Chamber composed of the

following judges:

Mr R. Ryssdal, President,

Mr R. Bernhardt,

Mr Thór Vilhjálmsson,

Mr F. Matscher,

Mr B. Walsh,

Mr C. Russo,

Mr A. Spielmann,

Mr J. De Meyer,

Mr N. Valticos,

Mrs E. Palm,

Mr F. Bigi,

Sir John Freeland,

Mr A.B. Baka,

Mr D. Gotchev,

Mr B. Repik,

Mr P. Jambrek,

Mr P. Kuris,

Mr U. Lohmus,

and also of Mr H. Petzold, Registrar, and Mr P.J. Mahoney, Deputy

Registrar,

Having deliberated in private on 30 September 1995 and

22 February 1996,

Delivers the following judgment, which was adopted on the

last-mentioned date:

_______________

Notes by the Registrar

1. The case is numbered 16/1994/463/544. The first number is the

case's position on the list of cases referred to the Court in the

relevant year (second number). The last two numbers indicate the

case's position on the list of cases referred to the Court since its

creation and on the list of corresponding originating applications to

the Commission.

2. Rules A apply to all cases referred to the Court before the entry

into force of Protocol No. 9 (P9) and thereafter only to cases

concerning States not bound by that Protocol (P9). They correspond to

the Rules that came into force on 1 January 1983, as amended several

times subsequently.

_______________

PROCEDURE

1. The case was referred to the Court by the European Commission

of Human Rights ("the Commission") on 20 May 1994, within the

three-month period laid down by Article 32 para. 1 (art. 32-1) and

Article 47 (art. 47) of the Convention for the Protection of Human

Rights and Fundamental Freedoms ("the Convention"). It originated in

application (no. 17488/90) against the United Kingdom of Great Britain

and Northern Ireland lodged with the Commission under Article 25

(art. 25) by Mr William Goodwin, a British citizen, on

27 September 1990.

The Commission's request referred to Articles 44 and 48

(art. 44, art. 48) and to the declaration whereby the United Kingdom

recognised the compulsory jurisdiction of the Court (Article 46)

(art. 46). The object of the request was to obtain a decision as to

whether the facts of the case disclosed a breach by the respondent

State of its obligations under Article 10 (art. 10) of the Convention.

2. In response to the enquiry made in accordance with

Rule 33 para. 3 (d) of Rules of Court A, the applicant stated that he

wished to take part in the proceedings and designated the lawyers who

would represent him (Rule 30).

3. The Chamber to be constituted included ex officio Sir John

Freeland, the elected judge of British nationality (Article 43 of the

Convention) (art. 43), and Mr R. Ryssdal, the President of the Court

(Rule 21 para. 3 (b)). On 28 May 1994, in the presence of the

Registrar, the President drew by lot the names of the other seven

members, namely Mr Thór Vilhjálmsson, Mr B. Walsh, Mr C. Russo, Mr J.

De Meyer, Mrs E. Palm, Mr A.B. Baka and Mr B. Repik (Article 43 in fine

of the Convention and Rule 21 para. 4) (art. 43).

4. As President of the Chamber (Rule 21 para. 5), Mr Ryssdal,

acting through the Registrar, consulted the Agent of the United Kingdom

Government ("the Government"), the applicant's lawyers and the Delegate

of the Commission on the organisation of the proceedings

(Rules 37 para. 1 and 38). Pursuant to the orders made in consequence,

the Registrar received the Government's memorial on 3 February 1995 and

the applicant's memorial on 1 March. On 19 April 1995 the Secretary

to the Commission indicated that the Delegate did not wish to reply in

writing.

On various dates between 12 April and 7 September 1995 the

Registrar received from the Government and the applicant observations

on his Article 50 (art. 50) claim.

5. On 24 February 1995 the President, having consulted the

Chamber, granted leave to Article 19 and Interights, two London based

non-governmental human rights organisations, to submit observations on

national law in the area in question in the present case, as applicable

in certain countries (Rule 37 para. 2). Their comments were filed on

10 March 1995.

6. In accordance with the President's decision, the hearing took

place in public in the Human Rights Building, Strasbourg, on

24 April 1995. The Court had held a preparatory meeting beforehand.

There appeared before the Court:

(a) for the Government

Mr I. Christie, Foreign and Commonwealth Office, Agent,

Mr M. Baker, QC, Counsel,

Mr M. Collon, Lord Chancellor's Department, Adviser;

(b) for the Commission

Mrs G.H. Thune, Delegate;

(c) for the applicant

Mr G. Robertson QC, Counsel,

Mr G. Bindman, Solicitor,

Mr R.D. Sack, Attorney,

Ms A.K. Hilker, Attorney,

Ms L. Moore, Attorney,

Mr J. Mortimer QC, Advisers.

The Court heard addresses by Mrs Thune, Mr Robertson and

Mr Baker and also replies to a question put by one of its members

individually.

7. Following deliberations on 27 April 1995 the Chamber decided

to relinquish jurisdiction forthwith in favour of a Grand Chamber

(Rule 51 para. 1).

8. The Grand Chamber to be constituted included ex officio

Mr Ryssdal, President of the Court, Mr R. Bernhardt, Vice-President of

the Court, and the other members of the Chamber which had relinquished

jurisdiction (Rule 51 para. 2 (a) and (b)). On 5 May 1995, in the

presence of the Registrar, the President drew by lot the names of the

nine additional judges called on to complete the Grand Chamber, namely

Mr F. Matscher, Mr A. Spielmann, Mr N. Valticos, Mr R. Pekkanen,

Mr F. Bigi, Mr D. Gotchev, Mr P. Jambrek, Mr P. Kuris and Mr U. Lohmus

(Rule 51 para. 2 (c)). Mr Pekkanen subsequently withdrew, being unable

to take part in the further consideration of the case (Rule 24 para. 1

in conjunction with Rule 51 para. 6).

9. Having taken note of the opinions of the Agent of the

Government, the Delegate of the Commission and the applicant, the Grand

Chamber decided on 4 September 1995 that it was not necessary to hold

a further hearing following the relinquishment of jurisdiction by the

Chamber (Rules 26 and 38, taken together with Rule 51 para. 6).

AS TO THE FACTS

I. Particular circumstances of the case

10. Mr William Goodwin, a British national, is a journalist and

lives in London.

11. On 3 August 1989 the applicant joined the staff of The

Engineer, published by Morgan-Grampian (Publishers) Ltd ("the

publishers"), as a trainee journalist. He was employed by Morgan

Grampian PLC ("the employer").

On 2 November 1989 the applicant was telephoned by a person

who, according to the applicant, had previously supplied him with

information on the activities of various companies. The source gave

him information about Tetra Ltd ("Tetra"), to the effect that the

company was in the process of raising a £5 million loan and had

financial problems as a result of an expected loss of £2.1 million

for 1989 on a turnover of £20.3 million. The information was

unsolicited and was not given in exchange for any payment. It was

provided on an unattributable basis. The applicant maintained that he

had no reason to believe that the information derived from a stolen or

confidential document. On 6 and 7 November 1989, intending to write

an article about Tetra, he telephoned the company to check the facts

and seek its comments on the information.

The information derived from a draft of Tetra's confidential

corporate plan. On 1 November 1989 there had been eight numbered

copies of the most recent draft. Five had been in the possession of

senior employees of Tetra, one with its accountants, one with a bank

and one with an outside consultant. Each had been in a ring binder and

was marked "Strictly Confidential". The accountants' file had last

been seen at about 3 p.m. on 1 November in a room they had been using

at Tetra's premises. The room had been left unattended between 3 p.m.

and 4 p.m. and during that period the file had disappeared.

A. Injunction and orders for disclosure of sources and documents

12. On 7 November 1989 Mr Justice Hoffmann of the High Court of

Justice (Chancery Division) granted an application by Tetra of the same

date for an ex parte interim injunction restraining the publishers of

The Engineer from publishing any information derived from the corporate

plan. The company informed all the national newspapers and relevant

journals of the injunction on 16 November.

13. In an affidavit to the High Court dated 8 November 1989, Tetra

stated that if the plan were to be made public it could result in a

complete loss of confidence in the company on the part of its actual

and potential creditors, its customers and in particular its suppliers,

with a risk of loss of orders and of a refusal to supply the company

with goods and services. This would inevitably lead to problems with

Tetra's refinancing negotiations. If the company went into

liquidation, there would be approximately four hundred redundancies.

14. On 14 November 1989 Mr Justice Hoffmann, on an application by

Tetra, ordered the publishers, under section 10 of the Contempt of

Court Act 1981 ("the 1981 Act"; see paragraph 20 below), to disclose

by 3 p.m. on 15 November the applicant's notes from the above telephone

conversation identifying his source. On the latter date, the

publishers having failed to comply with the order, Mr Justice Hoffmann

granted Tetra leave to join the applicant's employer and the applicant

himself to the proceedings and gave the defendants until 3 p.m. on the

following day to produce the notes.

On 17 November 1989 the High Court made a further order to the

effect that the applicant represented all persons who had received the

plan or information derived from it without authority and that such

persons should deliver up any copies of the plan in their possession.

The motion was then adjourned for the applicant to bring this order to

the attention of his source. However, the applicant declined to do so.

15. On 22 November 1989 Mr Justice Hoffmann ordered the applicant

to disclose by 3 p.m. on 23 November his notes on the grounds that it

was necessary "in the interests of justice", within the meaning of

section 10 of the 1981 Act (see paragraph 20 below), for the source's

identity to be disclosed in order to enable Tetra to bring proceedings

against the source to recover the document, obtain an injunction

preventing further publication or seek damages for the expenses to

which it had been put. The judge concluded:

"There is strong prima facie evidence that it has suffered a

serious wrong by the theft of its confidential file. There

is similar evidence that it would suffer serious commercial

damage from the publication of the information in the file

during the near future. It is true that the source may not

be the person who stole the file. He may have had the

information second hand, although this is less likely. In

either case, however, he was trying to secure damaging

publication of information which he must have known to be

sensitive and confidential. According to the respondent,

having given him the information he telephoned again a few

days later to ask how the article was getting on. The

plaintiff wishes to bring proceedings against the source for

recovery of the document, an injunction against further

publication and damages for the expense to which it has been

put. But it cannot obtain any of those remedies because it

does not know whom to sue. In the circumstance of this case,

in which a remedy against the source is urgently needed, I

think that disclosure is necessary in the interests of

justice.

... There is no doubt on the evidence that the respondent was

an innocent recipient of the information but the Norwich

Pharmacal case shows that this does not matter. The question

is whether he had become mixed up in the wrongdoing ...

The respondent has sworn an affidavit expressing the view

that the public interest requires publication of the

plaintiff's confidential commercial information. Counsel for

the respondent says that the plaintiff's previous published

results showed it as a prosperous expanding company and

therefore the public was entitled to know that it was now

experiencing difficulties. I reject this submission. There

is nothing to suggest that the information in the draft

business plan falsifies anything which has been previously

made public or that the plaintiff was under any obligation,

whether in law or commercial morality, to make that

information available to its customers, suppliers and

competitors. On the contrary, it seems to me that business

could not function properly if such information could not be

kept confidential."

16. On the same date the Court of Appeal rejected an application

by the applicant for a stay of execution of the High Court's order, but

substituted an order requiring the applicant either to disclose his

notes to Tetra or to deliver them to the Court of Appeal in a sealed

envelope with accompanying affidavit. The applicant did not comply

with this order.

B. Appeals to the Court of Appeal and to the House of Lords

17. On 23 November 1989 the applicant lodged an appeal with the

Court of Appeal from Mr Justice Hoffmann's order of 22 November 1989.

He argued that disclosure of his notes was not "necessary in the

interests of justice" within the meaning of section 10 of the 1981 Act;

the public interest in publication outweighed the interest in

preserving confidentiality; and, since he had not facilitated any

breach of confidence, the disclosure order against him was invalid.

The Court of Appeal dismissed the appeal on 12 December 1989.

Lord Donaldson held:

"The existence of someone with access to highly confidential

information belonging to the plaintiffs who was prepared to

break his obligations of confidentiality in this way was a

permanent threat to the plaintiffs which could only be

eliminated by discovering his identity. The injunctions

would no doubt be effective to prevent publication in the

press, but they certainly would not effectively prevent

publication to the plaintiffs' customers or competitors.

...

... I am loath in a judgment given in open court to give a

detailed explanation of why this is a case in which, if the

full facts were known and the courts had to say that they

could give the plaintiffs no assistance, there would, I

think, be a significant lessening in public confidence in the

administration of justice generally. Suffice it to say that

the plaintiffs are a, and perhaps the, leader in their very

important field, which I deliberately do not identify, with

national and international customers and competitors. They

are faced with a situation which is in part the result of

their own success. They have reached a point at which they

have to refinance and expand or go under with the loss not

only of money, but of a significant number of jobs. This is

not the situation in which the court should be or be seen to

be impotent in the absence of compelling reasons. The

plaintiffs are continuing with their refinancing discussions

menaced by the source (or the source's source) ticking away

beneath them like a time bomb. Prima facie they are entitled

to assistance in identifying, locating and defusing it.

That I should have concluded that the disclosure of

Mr Goodwin's source is necessary in the interests of justice

is not determinative of this appeal. It does, however, mean

that I have to undertake a balancing exercise. On the one

hand there is the general public interest in maintaining the

confidentiality of journalistic sources, which is the reason

why section 10 was enacted. On the other is, in my judgment,

a particular case in which disclosure is necessary in the

general interests of the administration of justice. If these

two factors stood alone, the case for ordering disclosure

would be made out, because the parliamentary intention must

be that, other things being equal, the necessity for

disclosure on any of the four grounds should prevail. Were

it otherwise, there would be no point in having these

doorways.

But other things would not be equal if, on the particular

facts of the case, there was some additional reason for

maintaining the confidentiality of a journalistic source. It

might, for example, have been the case that the information

disclosed what, on the authorities, is quaintly called

`iniquity'. Or the plaintiffs might have been a public

company whose shareholders were unjustifiably being kept in

ignorance of information vital to their making a sensible

decision on whether or not to sell their shares. Such a

feature would erode the public interest in maintaining the

confidentiality of the leaked information and correspondingly

enhance the public interest in maintaining the

confidentiality of journalistic sources. Equally, on

particular facts such as that the identification of the

source was necessary in order to support or refute a defence

of alibi in a major criminal trial, the necessity for

disclosure `in the interests of justice' might be enhanced

and overreach the threshold of the statutory doorway

requiring some vastly increased need for the protection of

the source if it was to be counterbalanced. Once the

[plaintiffs] can get through a doorway, the balancing

exercise comes into play.

On the facts of this case, nothing is to be added to either

side of the equation. The test of the needs of justice is

met, but not in superabundance. The general public interest

in maintaining the confidentiality of journalistic sources

exists, but the facts of this particular case add absolutely

nothing to it. No `iniquity' has been shown. No

shareholders have been kept in the dark. Indeed the public

has no legitimate interest in the business of the plaintiffs

who, although corporate in form, are in truth to be

categorised as private individuals. This is in reality a

piece of wholly unjustified intrusion into privacy.

Accordingly, I am left in no doubt that, notwithstanding the

general need to protect journalistic sources, this is a case

in which the balance comes down in favour of disclosure. I

would dismiss the companies' appeals. I can see no reason in

justice for doing otherwise with regard to Mr Goodwin's

appeals."

Lord Justice McCowan stated that the applicant must have been

"amazingly naïve" if it had not occurred to him that the source had

been at the very least guilty of breach of confidence.

The Court of Appeal granted the applicant leave to appeal to

the House of Lords.

18. The House of Lords upheld the Court of Appeal's decision on

4 April 1990, applying the principle expounded by Lord Reid in Norwich

Pharmacal Co. v. Customs and Excise Commissioners [1974] Appeal Cases

133, a previous leading case:

"if through no fault of his own a person gets mixed up in the

tortious acts of others so as to facilitate their wrongdoing

he may incur no personal liability but he comes under a duty

to assist the person who has been wronged by giving him full

information and disclosing the identity of the wrongdoers."

Lord Bridge, in the first of the five separate speeches given

in the applicant's case, underlined that in applying section 10 it was

necessary to carry out a balancing exercise between the need to protect

sources and, inter alia, the "interests of justice". He referred to

a number of other cases in relation to how the balancing exercise

should be conducted (in particular Secretary of State for Defence

v. Guardian Newspapers Ltd [1985] Appeal Cases 339) and continued:

"... the question whether disclosure is necessary in the

interests of justice gives rise to a more difficult problem

of weighing one public interest against another. A question

arising under this part of section 10 has not previously come

before your Lordships' House for decision. In discussing the

section generally Lord Diplock said in Secretary of State for

Defence v. Guardian Newspapers Ltd [1985] Appeal Cases 339,

350:

`The exceptions include no reference to "the public interest"

generally and I would add that in my view the expression

"justice", the interests of which are entitled to protection,

is not used in a general sense as the antonym of "injustice"

but in the technical sense of the administration of justice

in the course of legal proceedings in a court of law, or, by

reason of the extended definition of "court" in section 19 of

the Act of 1981 before a tribunal or body exercising the

judicial power of the state.'

I agree entirely with the first half of this dictum. To

construe `justice' as the antonym of `injustice' in

section 10 would be far too wide. But to confine it to the

`technical sense of the administration of justice in the

course of legal proceedings in a court of law' seems to me,

with all respect due to any dictum of the late Lord Diplock,

to be too narrow. It is, in my opinion, `in the interests of

justice', in the sense in which this phrase is used in

section 10, that persons should be enabled to exercise

important legal rights and to protect themselves from serious

legal wrongs whether or not resort to legal proceedings in a

court of law will be necessary to attain these objectives.

Thus, to take a very obvious example, if an employer of a

large staff is suffering grave damage from the activities of

an unidentified disloyal servant, it is undoubtedly in the

interests of justice that he should be able to identify him

in order to terminate his contract of employment,

notwithstanding that no legal proceedings may be necessary to

achieve that end.

Construing the phrase `in the interests of justice' in this

sense immediately emphasises the importance of the balancing

exercise. It will not be sufficient, per se, for a party

seeking disclosure of a source protected by section 10 to

show merely that he will be unable without disclosure to

exercise the legal right or avert the threatened legal wrong

on which he bases his claim in order to establish the

necessity of disclosure. The judge's task will always be to

weigh in the scales the importance of enabling the ends of

justice to be attained in the circumstances of the particular

case on the one hand against the importance of protecting the

source on the other hand. In this balancing exercise it is

only if the judge is satisfied that disclosure in the

interests of justice is of such preponderating importance as

to override the statutory privilege against disclosure that

the threshold of necessity will be reached.

Whether the necessity of disclosure in this sense is

established is certainly a question of fact rather than an

issue calling for the exercise of the judge's discretion,

but, like many other questions of fact, such as the question

of whether somebody has acted reasonably in given

circumstances, it will call for the exercise of a

discriminating and sometimes difficult value judgment. In

estimating the weight to be attached to the importance of

disclosure in pursuance of the policy which underlies

section 10 on the other hand, many factors will be relevant

on both sides of the scale.

It would be foolish to attempt to give a comprehensive

guidance as to how the balancing exercise should be carried

out. But it may not be out of place to indicate the kind of

factors which will require consideration. In estimating the

importance to be given to the case in favour of disclosure

there will be a wide spectrum within which the particular

case must be located. If the party seeking disclosure shows,

for example, that his very livelihood depends upon it, this

will put the case near one end of the spectrum. If he shows

no more than that what he seeks to protect is a minor

interest in property, this will put the case at or near the

other end. On the other side the importance of protecting a

source from disclosure in pursuance of the policy underlying

the statute will also vary within a spectrum. One important

factor will be the nature of the information obtained from

the source. The greater the legitimate interest in the

information which the source has given to the publisher or

intended publisher, the greater will be the importance of

protecting the source. But another and perhaps more

significant factor which will very much affect the importance

of protecting the source will be the manner in which the

information was itself obtained by the source. If it appears

to the court that the information was obtained legitimately

this will enhance the importance of protecting the source.

Conversely, if it appears that the information was obtained

illegally, this will diminish the importance of protecting

the source unless, of course, this factor is counterbalanced

by a clear public interest in publication of the information,

as in the classic case where the source has acted for the

purpose of exposing iniquity. I draw attention to these

considerations by way of illustration only and I emphasise

once again that they are in no way intended to be read as a

code ...

In the circumstances of the instant case, I have no doubt

that [the High Court] and the Court of Appeal were right in

finding that the necessity for disclosure of Mr Goodwin's

notes in the interests of justice was established. The

importance to the plaintiffs of obtaining disclosure lies in

the threat of severe damage to their business, and

consequentially to the livelihood of their employees, which

would arise from disclosure of the information contained in

their corporate plan while their refinancing negotiations are

still continuing. This threat ... can only be defused if

they can identify the source either as himself the thief of

the stolen copy of the plan or as a means to lead to the

identification of the thief and thus put themselves in a

position to institute proceedings for the recovery of the

missing document. The importance of protecting the source on

the other hand is much diminished by the source's complicity,

at the very least, in a gross breach of confidentiality which

is not counterbalanced by any legitimate interest which

publication of the information was calculated to serve.

Disclosure in the interests of justice is, on this view of

the balance, clearly of preponderating importance so as to

override the policy underlying the statutory protection of

sources and the test of necessity for disclosure is satisfied

..."

Lord Templeman added that the applicant should have

"recognised that [the information] was both confidential and damaging".

C. Fine for contempt of court

19. In the meantime, on 23 November 1989, the applicant had been

served with a motion seeking his committal for contempt of court, an

offence which was punishable by an unlimited fine or up to two years'

imprisonment (section 14 of the 1981 Act). On 24 November, at a

hearing in the High Court, counsel for the applicant had conceded that

he had been in contempt but the motion was adjourned pending the

appeal.

Following the House of Lord's dismissal of the appeal, the

High Court, on 10 April 1990, fined the applicant £5,000 for contempt

of court.

II. Relevant domestic law

20. Section 10 of the Contempt of Court Act 1981 provides:

"No court may require a person to disclose, nor is a person

guilty of contempt of court for refusing to disclose the

source of information contained in the publication for which

he is responsible, unless it be established to the

satisfaction of the court that disclosure is necessary in the

interests of justice or national security or for the

prevention of disorder or crime."

21. Section 14 (1) reads:

"In any case where a court has power to commit a person to

prison for contempt of court and (apart from this provision)

no limitation applies to the period of committal, the

committal shall (without prejudice to the power of the court

to order his earlier discharge) be for a fixed term, and that

term shall not on any occasion exceed two years in the case

of committal by a superior court, or one month in the case of

committal by an inferior court."

22. In Secretary of State for Defence v. Guardian Newspapers Lord

Diplock considered the expression "interests of justice" in section 10

of the 1981 Act:

"The exceptions include no reference to the 'public interest'

generally and I would add that in my view the expression

'justice', the interests of which are entitled to protection,

is not used in a general sense as the antonym of 'injustice'

but in a technical sense of the administration of justice in

the course of legal proceedings in a court of law ...

[The expression `interests of justice'] ... refers to the

administration of justice in particular legal proceedings

already in existence or, in the type of `bill of discovery'

case ... exemplified by the Norwich Pharmacal Co. v. Customs

and Excise Commissioners ... a particular civil action which

it is proposed to bring against a wrongdoer whose identity

has not yet been ascertained. I find it difficult to

envisage a civil action in which section 10 of the [1981] Act

would be relevant other than one of defamation or for

detention of goods where the goods, as in the instant case

and in British Steel Corporation v. Granada Television ...

consist of or include documents that have been supplied to

the media in breach of confidence."

PROCEEDINGS BEFORE THE COMMISSION

23. In his application (no. 17488/90) of 27 September 1990 to the

Commission, the applicant complained that the imposition of a

disclosure order requiring him to reveal the identity of a source

violated his right to freedom of expression under Article 10 (art. 10)

of the Convention.

24. The Commission declared the application admissible on

7 September 1993. In its report of 1 March 1994 (Article 31)

(art. 31), the Commission expressed the opinion that there had been a

violation of Article 10 (art. 10) (by eleven votes to six). The full

text of the Commission's opinion and of the dissenting opinion

contained in the report is reproduced as an annex to this judgment.

_______________

Note by the Registrar

1. For practical reasons this annex will appear only with the printed

version of the judgment (Reports 1996-II), but a copy of the

Commission's report is obtainable from the Registry.

_______________

FINAL SUBMISSIONS MADE TO THE COURT

25. At the hearing on 24 April 1995 the Government, as they had

done in their memorial, invited the Court to hold that there had been

no violation of Article 10 (art. 10) of the Convention.

26. On the same occasion the applicant reiterated his request to

the Court, stated in his memorial, to find that there had been a breach

of Article 10 (art. 10) and to award him just satisfaction under

Article 50 (art. 50) of the Convention.

AS TO THE LAW

I. ALLEGED VIOLATION OF ARTICLE 10 (art. 10) OF THE CONVENTION

27. The applicant alleged that the disclosure order requiring him

to reveal the identity of his source and the fine imposed upon him for

having refused to do so constituted a violation of Article 10 (art. 10)

of the Convention, which reads:

"1. Everyone has the right to freedom of expression. This

right shall include freedom to hold opinions and to receive

and impart information and ideas without interference by

public authority and regardless of frontiers. This

Article (art. 10) shall not prevent States from requiring the

licensing of broadcasting, television or cinema enterprises.

2. The exercise of these freedoms, since it carries with it

duties and responsibilities, may be subject to such

formalities, conditions, restrictions or penalties as are

prescribed by law and are necessary in a democratic society,

in the interests of national security, territorial integrity

or public safety, for the prevention of disorder or crime,

for the protection of health or morals, for the protection of

the reputation or rights of others, for preventing the

disclosure of information received in confidence, or for

maintaining the authority and impartiality of the judiciary."

28. It was undisputed that the measures constituted an

interference with the applicant's right to freedom of expression as

guaranteed by paragraph 1 of Article 10 (art. 10-1) and the Court sees

no reason to hold otherwise. It must therefore examine whether the

interference was justified under paragraph 2 of Article 10 (art. 10-2).

A. Was the interference "prescribed by law"?

29. The Court observes that, and this was not disputed, the

impugned disclosure order and the fine had a basis in national law,

namely sections 10 and 14 of the 1981 Act (see paragraphs 20 and 21

above). On the other hand, the applicant maintained that as far as the

disclosure order was concerned the relevant national law failed to

satisfy the foreseeability requirement which flows from the expression

"prescribed by law".

30. The Government contested this allegation whereas the

Commission did not find it necessary to reach a conclusion on this

point.

31. The Court reiterates that, according to its case-law, the

relevant national law must be formulated with sufficient precision to

enable the persons concerned - if need be with appropriate legal advice

- to foresee, to a degree that is reasonable in the circumstances, the

consequences which a given action may entail. A law that confers a

discretion is not in itself inconsistent with this requirement,

provided that the scope of the discretion and the manner of its

exercise are indicated with sufficient clarity, having regard to the

legitimate aim in question, to give the individual adequate protection

against arbitrary interference (see, for instance, the Tolstoy

Miloslavsky v. the United Kingdom judgment of 13 July 1995, Series A

no. 316-B, pp. 71-72, para. 37).

32. The applicant argued that the interests-of-justice exception

to the protection of sources under section 10 of the 1981 Act was not

sufficiently precise to enable journalists to foresee the circumstances

in which such an order could be made against them in order to protect

a private company. By applying this provision to the present case,

Lord Bridge had completely revised the interpretation given by Lord

Diplock in Secretary of State for Defence v. Guardian Newspapers. The

balancing exercise introduced by Lord Bridge amounted to subjective

judicial assessment of factors based on retrospective evidence

presented by the party seeking to discover the identity of the source

(see paragraph 18 above). At the time the source provided the

information, the journalist could not possibly know whether the party's

livelihood depended upon such discovery and could not assess with any

degree of certainty the public interest in the information. A

journalist would usually be in a position to judge whether the

information was acquired by legitimate means or not, but would not be

able to predict how the courts would view the matter. The law, as it

stood, was no more than a mandate to the judiciary to order journalists

to disclose sources if they were "moved" by the complaint of an

aggrieved party.

33. The Court recognises that in the area under consideration it

may be difficult to frame laws with absolute precision and that a

certain degree of flexibility may even be desirable to enable the

national courts to develop the law in the light of their assessment of

what measures are necessary in the interests of justice.

Contrary to what is suggested by the applicant, the relevant

law did not confer an unlimited discretion on the English courts in

determining whether an order for disclosure should be made in the

interests of justice. Important limitations followed in the first place

from the terms of section 10 of the 1981 Act, according to which an

order for disclosure could be made if it was "established to the

satisfaction of the court that disclosure [was] necessary in the

interests of justice" (see paragraph 20 above).

In addition, at the material time, that is when the applicant

received the information from his source, there existed not only an

interpretation by Lord Diplock of the interests-of-justice provision

in section 10 in the case of Secretary of State for Defence v. Guardian

Newspapers but also a ruling by Lord Reid in Norwich Pharmacal Co.

v. Customs and Excise Commissioners (1973), to the effect that a person

who through no fault of his own gets mixed up in wrongdoing may come

under a duty to disclose the identity of the wrongdoer (see

paragraphs 15, 18 and 22 above).

In the Court's view the interpretation of the relevant law

made by the House of Lords in the applicant's case did not go beyond

what could be reasonably foreseen in the circumstances (see, mutatis

mutandis, the recent S.W. v. the United Kingdom judgment of

22 November 1995, Series A no. 335-B, p. 42, para. 36). Nor does it

find any other indication that the law in question did not afford the

applicant adequate protection against arbitrary interference.

34. Accordingly, the Court concludes that the impugned measures

were "prescribed by law".

B. Did the interference pursue a legitimate aim?

35. It was not disputed before the Convention institutions that

the aim of the impugned measures was to protect Tetra's rights and that

the interference thus pursued a legitimate aim. The Government

maintained that the measures were also taken for the prevention of

crime.

36. The Court, being satisfied that the interference pursued the

first of these aims, does not find it necessary to determine whether

it also pursued the second.

C. Was the interference "necessary in a democratic society"?

37. The applicant and the Commission were of the opinion that

Article 10 (art. 10) of the Convention required that any compulsion

imposed on a journalist to reveal his source had to be limited to

exceptional circumstances where vital public or individual interests

were at stake. This test was not satisfied in the present case. The

applicant and the Commission invoked the fact that Tetra had already

obtained an injunction restraining publication (see paragraph 12

above), and that no breach of that injunction had occurred. Since the

information in question was of a type commonly found in the business

press, they did not consider that the risk of damage that further

publication could cause was substantiated by Tetra, which had suffered

none of the harm adverted to.

The applicant added that the information was newsworthy even

though it did not reveal matters of vital public interest, such as

crime or malfeasance. The information about Tetra's mismanagement,

losses and loan-seeking activities was factual, topical and of direct

interest to customers and investors in the market for computer

software. In any event, the degree of public interest in the

information could not be a test of whether there was a pressing social

need to order the source's disclosure. A source may provide

information of little value one day and of great value the next; what

mattered was that the relationship between the journalist and the

source was generating the kind of information which had legitimate news

potential. This was not to deny Tetra's entitlement to keep its

operations secret, if it could, but to contest that there was a

pressing social need for punishing the applicant for refusing to

disclose the source of the information which Tetra had been unable to

keep secret.

38. The Government contended that the disclosure order was

necessary in a democratic society for the protection of "the rights"

of Tetra. The function of the domestic courts was both to ascertain

facts and, in the light of the facts established, to determine the

legal consequences which should flow from them. In the Government's

view, the supervisory jurisdiction of the Convention institutions

extended only to the latter. These limitations on the Convention

review were of importance in the present case, where the national

courts had proceeded on the basis that the applicant had received the

information from his source in ignorance as to its confidential nature,

although, in fact, this was something he ought to have recognised.

Moreover, the source was probably the thief of the confidential

business plan and had improper motives for divulging the information.

In addition, the plaintiffs would suffer serious commercial damage from

further publication of the information. These findings by the domestic

courts were based upon the evidence which was placed before them.

It was further submitted that there was no significant public

interest in the publication of the confidential information received

by the applicant. Although there is a general public interest in the

free flow of information to journalists, both sources and journalists

must recognise that a journalist's express promise of confidentiality

or his implicit undertaking of non-attributability may have to yield

to a greater public interest. The journalist's privilege should not

extend to the protection of a source who has conducted himself mala

fide or, at least, irresponsibly, in order to enable him to pass on,

with impunity, information which has no public importance. The source

in the present case had not exercised the responsibility which was

called for by Article 10 (art. 10) of the Convention. The information

in issue did not possess a public-interest content which justified

interference with the rights of a private company such as Tetra.

Although it was true that effective injunctions had been

obtained, so long as the thief and the source remained untraced, the

plaintiffs were at risk of further dissemination of the information

and, consequently, of damage to their business and to the livelihood

of their employees. There were no other means by which Tetra's

business confidence could have been protected.

In these circumstances, according to the Government, the order

requiring the applicant to divulge his source and the further order

fining him for his refusal to do so did not amount to a breach of the

applicant's rights under Article 10 (art. 10) of the Convention.

39. The Court recalls that freedom of expression constitutes one

of the essential foundations of a democratic society and that the

safeguards to be afforded to the press are of particular importance

(see, as a recent authority, the Jersild v. Denmark judgment of

23 September 1994, Series A no. 298, p. 23, para. 31).

Protection of journalistic sources is one of the basic

conditions for press freedom, as is reflected in the laws and the

professional codes of conduct in a number of Contracting States and is

affirmed in several international instruments on journalistic freedoms

(see, amongst others, the Resolution on Journalistic Freedoms and Human

Rights, adopted at the 4th European Ministerial Conference on Mass

Media Policy (Prague, 7-8 December 1994) and Resolution on the

Confidentiality of Journalists' Sources by the European Parliament,

18 January 1994, Official Journal of the European Communities

No. C 44/34). 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. Having regard to the

importance of the protection of journalistic sources for press freedom

in a democratic society and the potentially chilling effect an order

of source disclosure has on the exercise of that freedom, such a

measure cannot be compatible with Article 10 (art. 10) of the

Convention unless it is justified by an overriding requirement in the

public interest.

These considerations are to be taken into account in applying

to the facts of the present case the test of necessity in a democratic

society under paragraph 2 of Article 10 (art. 10-2).

40. As a matter of general principle, the "necessity" for any

restriction on freedom of expression must be convincingly established

(see the Sunday Times v. the United Kingdom (no. 2) judgment of

26 November 1991, Series A no. 217, pp. 28-29, para. 50, for a

statement of the major principles governing the "necessity" test).

Admittedly, it is in the first place for the national authorities to

assess whether there is a "pressing social need" for the restriction

and, in making their assessment, they enjoy a certain margin of

appreciation. In the present context, however, the national margin of

appreciation is circumscribed by the interest of democratic society in

ensuring and maintaining a free press. Similarly, that interest will

weigh heavily in the balance in determining, as must be done under

paragraph 2 of Article 10 (art. 10-2), whether the restriction was

proportionate to the legitimate aim pursued. In sum, limitations on

the confidentiality of journalistic sources call for the most careful

scrutiny by the Court.

The Court's task, in exercising its supervisory function, is

not to take the place of the national authorities but rather to review

under Article 10 (art. 10) the decisions they have taken pursuant to

their power of appreciation. In so doing, the Court must look at the

"interference" complained of in the light of the case as a whole and

determine whether the reasons adduced by the national authorities to

justify it are "relevant and sufficient".

41. In the instant case, as appears from Lord Bridge's speech in

the House of Lords, Tetra was granted an order for source disclosure

primarily on the grounds of the threat of severe damage to their

business, and consequently to the livelihood of their employees, which

would arise from disclosure of the information in their corporate plan

while their refinancing negotiations were still continuing (see

paragraph 18 above). This threat, "ticking away beneath them like a

time bomb", as Lord Donaldson put it in the Court of Appeal (see

paragraph 17 above), could only be defused, Lord Bridge considered, if

they could identify the source either as himself the thief of the

stolen copy of the plan or as a means to lead to identification of the

thief and thus put the company in a position to institute proceedings

for the recovery of the missing document. The importance of protecting

the source, Lord Bridge concluded, was much diminished by the source's

complicity, at the very least, in a gross breach of confidentiality

which was not counterbalanced by any legitimate interest in publication

of the information (see paragraph 18 above).

42. In the Court's view, the justifications for the impugned

disclosure order in the present case have to be seen in the broader

context of the ex parte interim injunction which had earlier been

granted to the company, restraining not only the applicant himself but

also the publishers of The Engineer from publishing any information

derived from the plan. That injunction had been notified to all the

national newspapers and relevant journals (see paragraph 12 above).

The purpose of the disclosure order was to a very large extent the same

as that already being achieved by the injunction, namely to prevent

dissemination of the confidential information contained in the plan.

There was no doubt, according to Lord Donaldson in the Court of Appeal,

that the injunction was effective in stopping dissemination of the

confidential information by the press (see paragraph 17 above).

Tetra's creditors, customers, suppliers and competitors would not

therefore come to learn of the information through the press. A vital

component of the threat of damage to the company had thus already

largely been neutralised by the injunction. This being so, in the

Court's opinion, in so far as the disclosure order merely served to

reinforce the injunction, the additional restriction on freedom of

expression which it entailed was not supported by sufficient reasons

for the purposes of paragraph 2 of Article 10 (art. 10-2) of the

Convention.

43. What remains to be ascertained by the Court is whether the

further purposes served by the disclosure order provided sufficient

justification.

44. In this respect it is true, as Lord Donaldson put it, that the

injunction "would not effectively prevent publication to [Tetra's]

customers or competitors" directly by the applicant journalist's source

(or that source's source) (see paragraph 17 above). Unless aware of

the identity of the source, Tetra would not be in a position to stop

such further dissemination of the contents of the plan, notably by

bringing proceedings against him or her for recovery of the missing

document, for an injunction against further disclosure by him or her

and for compensation for damage.

It also had a legitimate reason as a commercial enterprise in

unmasking a disloyal employee or collaborator, who might have

continuing access to its premises, in order to terminate his or her

association with the company.

45. These are undoubtedly relevant reasons. However, as also

recognised by the national courts, it will not be sufficient, per se,

for a party seeking disclosure of a source to show merely that he or

she will be unable without disclosure to exercise the legal right or

avert the threatened legal wrong on which he or she bases his or her

claim in order to establish the necessity of disclosure (see

paragraph 18 above). In that connection, the Court would recall that

the considerations to be taken into account by the Convention

institutions for their review under paragraph 2 of Article 10

(art. 10-2) tip the balance of competing interests in favour of the

interest of democratic society in securing a free press (see

paragraphs 39 and 40 above). On the facts of the present case, the

Court cannot find that Tetra's interests in eliminating, by proceedings

against the source, the residual threat of damage through dissemination

of the confidential information otherwise than by the press, in

obtaining compensation and in unmasking a disloyal employee or

collaborator were, even if considered cumulatively, sufficient to

outweigh the vital public interest in the protection of the applicant

journalist's source. The Court does not therefore consider that the

further purposes served by the disclosure order, when measured against

the standards imposed by the Convention, amount to an overriding

requirement in the public interest.

46. In sum, there was not, in the Court's view, a reasonable

relationship of proportionality between the legitimate aim pursued by

the disclosure order and the means deployed to achieve that aim. The

restriction which the disclosure order entailed on the applicant

journalist's exercise of his freedom of expression cannot therefore be

regarded as having been necessary in a democratic society, within the

meaning of paragraph 2 of Article 10 (art. 10-2), for the protection

of Tetra's rights under English law, notwithstanding the margin of

appreciation available to the national authorities.

Accordingly, the Court concludes that both the order requiring

the applicant to reveal his source and the fine imposed upon him for

having refused to do so gave rise to a violation of his right to

freedom of expression under Article 10 (art. 10).

II. APPLICATION OF ARTICLE 50 (art. 50) OF THE CONVENTION

47. Mr William Goodwin sought just satisfaction under Article 50

(art. 50) of the Convention, which reads:

"If the Court finds that a decision or a measure taken by a

legal authority or any other authority of a High Contracting

Party is completely or partially in conflict with the

obligations arising from the ... Convention, and if the

internal law of the said Party allows only partial reparation

to be made for the consequences of this decision or measure,

the decision of the Court shall, if necessary, afford just

satisfaction to the injured party."

A. Non-pecuniary damage

48. The applicant claimed 15,000 pounds sterling for non-pecuniary

damage, on account of mental anguish, shock, dismay and anxiety which

he felt as a result of the proceedings against him. For five months

he was in constant peril of being sent to prison, for up to two years,

as a punishment for obeying his conscience and for living up to his

ethical obligations as a journalist. He still has to live with a

criminal record since his crime of contempt of court would not be

expunged by a finding of breach by the Court. He had been the subject

of harassment by court process servers and his employers so as to

comply with a court order against themselves, all of which was added

to the pressure exerted on him by the threat of dismissal if he did not

disclose the identity of his source.

49. The Government objected to the applicant's claim on the ground

that the alleged adverse consequences stemmed from the fact that he was

defying and disobeying the law. Even if he considered it a bad law, he

should have obeyed the order to provide the information to the court

in a sealed envelope, or, at the very least, he should have recognised

his duty to obey the disclosure order when he lost his case in the

House of Lords. Had he done so, the Government would have found it

difficult to resist a claim for compensation for any adverse

consequences.

50. The Court is not persuaded by the Government's arguments.

What matters under Article 50 (art. 50) is whether the facts found to

constitute a violation have resulted in non-pecuniary damage. In the

present case, the Court finds it established that there was a causal

link between the anxiety and distress suffered by the applicant and the

breach found of the Convention. However, in the circumstances of the

case, the Court considers that this finding constitutes adequate just

satisfaction in respect of the damage claimed under this head.

B. Costs and expenses

51. The applicant further sought reimbursement of costs and

expenses totalling £49,500, in respect of the following items specified

in his memorial to the Court of 1 March 1995:

(a) £19,500 for counsel's fees for drafting the application to the

Commission and written observations to the latter and the Court and for

preparing and presenting the case before both the Commission and the

Court;

(b) £30,000 for work by the applicant's solicitors in connection

with the proceedings before the Commission and the Court.

To the above amounts should be added any applicable value

added tax (VAT).

52. The Government, by letter of 11 April 1995, invited the

applicant to provide a detailed breakdown of the costs.

53. In a letter of 25 July 1995 the applicant stated that the

solicitors' work before the Commission and Court amounted to a total

of 136 hours at, on average, £250 per hour for a senior partner and

£150 per hour for an assistant solicitor.

54. On 30 August 1995, the Government submitted their comments on

the breakdown provided by the applicant. Without prejudice to the

Court's decision regarding the belatedness of the applicant's claim,

they stated that they considered that the £19,500 sought in respect of

counsel was unreasonably high and that £16,000 would be reasonable.

As to solicitors' fees, the Government regarded the rates and

the number of hours claimed as excessive. In their view 110 hours at

an average rate of £160 per hour for a senior partner and £100 per hour

for an assistant solicitor would be reasonable.

According to the Government's calculations, it would be

reasonable to indemnify the applicant £37,595.50 (VAT included) for

costs.

55. By letter of 1 September 1995, the applicant stressed that the

number of hours and the hourly rates claimed were reasonable. He

conceded that if the Court found in his favour, it could properly in

its discretion award the amounts indicated by the Government. He

stated that he would be prepared to settle for a total figure midway

between the total figures contended for by the two parties.

56. The Court considers the sum conceded by the Government to be

adequate in the circumstances of the present case. The Court therefore

awards the applicant £37,595,50 (VAT included) for legal costs and

expenses, less the 9,300 French francs already paid in legal aid by the

Council of Europe in respect of legal fees.

C. Default interest

57. According to the information available to the Court, the

statutory rate of interest applicable in the United Kingdom at the date

of adoption of the present judgment is 8% per annum.

FOR THESE REASONS, THE COURT

1. Holds by eleven votes to seven that there has been a

violation of Article 10 (art. 10) of the Convention;

2. Holds unanimously that the finding of a violation constitutes

adequate just satisfaction for the non-pecuniary damage

suffered by the applicant;

3. Holds unanimously:

(a) that the respondent State is to pay to the applicant,

within three months, in respect of costs and expenses

£37,595.50 (thirty seven thousand, five hundred and ninety

five pounds sterling and fifty pence) less 9,300 (nine

thousand, three hundred) French francs to be converted into

pounds sterling at the rate applicable on the date of

delivery of the present judgment;

(b) that simple interest at an annual rate of 8% shall be

payable from the expiry of the above-mentioned three months

until settlement;

4. Dismisses unanimously the remainder of the claim for just

satisfaction.

Done in English and in French, and delivered at a public

hearing in the Human Rights Building, Strasbourg, on 27 March 1996.

Signed: Rolv RYSSDAL

President

Signed: Herbert PETZOLD

Registrar

In accordance with Article 51 para. 2 (art. 51-2) of the

Convention and Rule 53 para. 2 of Rules of Court A, the following

separate opinions are annexed to this judgment:

(a) concurring opinion of Mr De Meyer;

(b) joint dissenting opinion of Mr Ryssdal, Mr Bernhardt,

Mr Thór Vilhjálmsson, Mr Matscher, Mr Walsh, Sir John

Freeland and Mr Baka;

(c) separate dissenting opinion of Mr Walsh.

Initialled: R. R.

Initialled: H. P.

CONCURRING OPINION OF JUDGE DE MEYER

I fully agree with the Court's conclusion that the order

requiring the applicant to reveal his source and the fine imposed upon

him for having refused to do so violated his right to freedom of

expression.

I would however observe that so did also, in my view, the

earlier injunction against publication of the information (1), since

it was an utterly unacceptable form of prior restraint (2).

_______________

1. Paragraphs 12 and 42 of the judgement.

2. See my partly dissenting opinion on that matter in the case of

Observer and Guardian v. the United Kingdom, judgment of

26 November 1991, Series A no. 216, p.46.

_______________

Even if there had not been such an injunction the disclosure

order and the ensuing fine would not have been legitimate. The

protection of a journalist's source is of such a vital importance for

the exercise of his right to freedom of expression that it must, as a

matter of course, never be allowed to be infringed upon, save perhaps

in very exceptional circumstances, which certainly did not exist in the

present case.

JOINT DISSENTING OPINION OF JUDGES RYSSDAL,

BERNHARDT, THÓR VILHJÁLMSSON, MATSCHER,

WALSH, SIR JOHN FREELAND AND BAKA

1. We are unable to agree that, as the majority conclude in

paragraph 46 of the judgment, "both the order requiring the applicant

to reveal his source and the fine imposed upon him for having refused

to do so gave rise to a violation of his right to freedom of expression

under Article 10 (art. 10)".

2. We of course fully accept that, as is recalled in paragraph 39

of the judgment, freedom of expression constitutes one of the essential

foundations of a democratic society and the safeguards to be afforded

to the press are of particular importance. We likewise agree that, as

the paragraph goes on to say, "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". It follows that an order for source disclosure

cannot be compatible with Article 10 (art. 10) of the Convention unless

it is justified under paragraph 2 of that Article (art. 10-2).

3. Where we part company with the majority is in the assessment

of whether, in the circumstances of the present case, such a

justification existed - whether, in particular, the test of necessity

in a democratic society should be regarded as having been satisfied.

4. As regards the test in domestic law, section 10 of the

Contempt of Court Act 1981 clearly gives statutory force to a

presumption against disclosure of sources. It provides (see

paragraph 20 of the judgment) that no court may require disclosure

"unless it be established to the satisfaction of the court that

disclosure is necessary in the interests of justice or national

security or for the prevention of disorder or crime".

5. As explained by Lord Bridge in the House of Lords in the

applicant's case, this statutory restriction operates unless the party

seeking disclosure can satisfy the court that "disclosure is necessary"

in the interests of one of the four matters of public concern that are

listed in the section. In asking himself the question whether

disclosure of the source of some particular information is necessary

to serve one of the interests in question, the judge has to engage in

a balancing exercise: he must start "with the assumptions, first, that

the protection of sources is itself a matter of high public importance,

secondly, that nothing less than necessity will suffice to override it,

thirdly, that the necessity can only arise out of concern for another

matter of high public importance, being one of the four interests

listed in the section". Dealing with the way in which the judge should

determine necessity where, as here, the relevant interests are those

of justice, Lord Bridge said that it would never be enough for a party

seeking disclosure of a source protected by the section to show merely

that he will be unable without disclosure to exercise a legal right or

avert a threatened legal wrong. "The judge's task will always be to

weigh in the scales the importance of enabling the ends of justice to

be attained in the circumstances of the particular case on the one hand

against the importance of protecting the source on the other hand. In

this balancing exercise it is only if the judge is satisfied that

disclosure in the interests of justice is of such preponderating

importance as to override the statutory privilege against disclosure

that the threshold of necessity will be reached."

6. Given that, as the judgment accepts, the protection of Tetra's

rights by way of the "interests-of-justice" exception amounts to the

pursuit of a legitimate aim under paragraph 2 of Article 10

(art. 10-2), the domestic-law test of necessity strikingly resembles

that required by the Convention. The domestic courts at three levels,

on the basis of all the evidence which was before them, concluded that

disclosure was necessary in the interests of justice. Factors which

Lord Bridge stressed, in support of his conclusion that the judge at

first instance and the Court of Appeal were right in finding that the

necessity for disclosure in the interests of justice was established,

were the following. First, the importance to Tetra of obtaining

disclosure lay in the threat of severe damage to their business, and

consequentially to the livelihood of their employees, which would arise

from disclosure of the information contained in their corporate plan

while their refinancing operations were still continuing. This threat

could only be defused if they could identify the source as himself the

thief of the stolen copy of the plan or as a means to lead to

identification of the thief and thus put themselves in a position to

institute proceedings for the recovery of the missing document.

Secondly, the importance of protecting the source was much diminished

by the source's complicity, at the very least, in a gross breach of

confidentiality which was not counterbalanced by any legitimate

interest which publication of the information was calculated to serve.

In this view of the balance, disclosure in the interests of justice was

clearly of preponderating importance so as to override the policy

underlying the statutory protection of sources and the test of

necessity for disclosure was satisfied.

7. The judgment, on the other hand, concludes that there was not

a reasonable relationship of proportionality between the legitimate aim

pursued by the disclosure order and the means deployed to achieve that

aim (paragraph 46). In reaching this conclusion, the judgment first

says (rightly), in paragraph 42, that the justifications for the

disclosure order have to be seen in the broader context of the

injunction which Tetra had already obtained. That injunction was

effective in stopping dissemination of the confidential information by

the press, so that a "vital component of the threat of damage to the

company had ... already largely been neutralised ...". "This being

so", the paragraph continues "... in so far as the disclosure order

merely served to reinforce the injunction, the additional restriction

on freedom of expression which it entailed was not supported by

sufficient reasons for the purposes of paragraph 2 of Article 10

(art. 10-2) ..".

8. To suggest, however, that the disclosure order may have

"merely served to reinforce the injunction" is to misstate the case.

As the decisions of the domestic courts explain, the purpose of the

disclosure order was to extend the protection of Tetra's rights by

closing gaps left by the injunction. The injunction bit upon the

press, but it would not effectively prevent publication to Tetra's

customers or competitors directly by the applicant's source (or that

source's source). Without knowing the identity of the source, Tetra

would not be in a position to stop further dissemination of the

contents of the plan by bringing proceedings against him for recovery

of the missing document, for an injunction prohibiting further

disclosure by him and for damages. Nor would they be able to remove

any threat of further harm to their interests from a possible disloyal

employee or collaborator who might enjoy continued access to their

premises.

9. These further purposes served by the disclosure order are

considered in paragraphs 44 and 45 of the judgment. The latter

paragraph, after recalling that the considerations to be taken into

account by the Convention institutions for their review under

paragraph 2 of Article 10 (art. 10-2) "tip the balance of competing

interests in favour of the interest of democratic society in securing

a free press", asserts that Tetra's interests in securing the

additional measures of protection sought through the disclosure order

were insufficient to outweigh the vital public interest in the

protection of the applicant's source.

10. No detailed assessment of these interests of Tetra's is,

however, undertaken, and in the absence of it there is no satisfactory

basis for the balancing exercise which the Court is required to

undertake. The domestic courts were, in any event, better placed to

evaluate, on the basis of the evidence before them, the strength of

those interests, and in our view the conclusion which they reached as

to where, in the light of their evaluation, the corresponding balance

should be struck was within the margin of appreciation allowed to the

national authorities.

11. We therefore conclude that neither the disclosure order nor

the fine imposed upon the applicant for his failure to comply with it

gave rise to a violation of his right to freedom of expression under

Article 10 (art. 10).

SEPARATE DISSENTING OPINION OF JUDGE WALSH

1. In his opening address to the Court counsel for the applicant

stated that his client was "claiming no special privilege by virtue of

his profession because journalists are not above the law". Yet it

appears to me that the Court in its decision has decided in effect that

under the Convention a journalist is by virtue of his profession to be

afforded a privilege not available to other persons. Should not the

ordinary citizen writing a letter to the papers for publication be

afforded an equal privilege even though he is not by profession a

journalist? To distinguish between the journalist and the ordinary

citizen must bring into question the provisions of Article 14 (art. 14)

of the Convention.

2. In the present case the applicant did not suffer any denial

of expressing himself. Rather has he refused to speak. In consequence

a litigant seeking the protection of the law for his interests which

were wrongfully injured is left without the remedy the courts had

decided he was entitled to. Such a result is certainly a matter of

public interest and the applicant has succeeded in frustrating his

national courts in their efforts to act in the interests of justice.

It is for the national courts to decide whether or not the document in

question was stolen. Yet the applicant claims that because he does not

believe it was stolen he can justify his refusal to comply with the

court order made in his case. His attitude and his words give the

impression that he would comply if he believed the document in question

had been stolen. He is thus setting up his personal belief as to truth

of a fact which is exclusively within the domain of the national courts

to decide as a justification for not obeying the order of the courts

simply because he does not agree with the judicial findings of fact.

3. It does not appear to me that anything in the Convention

permits a litigant to set up his own belief as to the facts against the

finding of fact made by the competent courts and thereby seek to

justify a refusal to be bound by such judicial finding of fact. To

permit him to do so simply because he is a journalist by profession is

to submit the judicial process to the subjective assessment of one of

the litigants and to surrender to that litigant the sole decision as

to the moral justification for refusing to obey the court order in

consequence of which the other litigant is to be denied justice and to

suffer damage. Thus there is a breach of a primary rule of natural

justice - no man is to be the judge of his own cause.



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