July 6, 2020

The claimants, who were various, sought an order for disclosure by the defendant, News Group Newspapers Ltd, of various payment records and emails relating to payments made by News Group to “Nigel”, who the claimants had identified as a freelance journalist who provided tips and stories to News Group.

Pursuant to a court order, News Group had already provided some of the emails requested, but had withheld the vast majority of them, as well as all payment records, under the proviso that disclosure was “subject to the Defendant’s right to protect its confidential sources”. News Group argued that Nigel was a confidential source. News Group was not seeking to protect the identity of Nigel, as he had clearly already been identified, but the fact that he was the source of certain tips and/or newspaper stories.

The claimants had identified Nigel from an unredacted list of contacts that a senior executive at The Sun had been ordered to disclose. The only redactions permitted by the order were the executive’s personal details and details of confidential sources who were not involved in unlawful information gathering. The claimants argued that, since Nigel’s name had not been redacted, he was not a confidential source or, if he was, then he must have been a user of unlawful information gathering techniques.Section 10 of the Contempt of Court Act 1981 provides that “No court may require a person to disclose, nor is any person guilty of contempt of court for refusing to disclose, the source of information contained in a 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”.

Mr Justice Mann said that the matter turned on the application of the “interests of justice” exception. He noted that the concept of a confidential source does not feature expressly in the statutory provision. Nonetheless, he said, confidentiality, or perhaps the absence of it, is a very relevant factor to consider in determining where the interests of justice lie.

Mann J said that the material that News Group wished to protect was material provided to a publisher with a view to possible publication. Therefore the material qualified under s 10. Further, the fact that Nigel being the source of particular material had not been established also fell within the protection of s 10. If the material linked him to such material then it was prima facie protected.

Mann J did not consider that Nigel’s status as a journalist by itself meant that s 10 did not apply. There was no justification in the text for distinguishing him on that status. Further, the fact that he was being paid did not exclude him either, as it was well known that the familiar type of protected source would sometimes be paid for the information. The scale of the payments also did not prevent the engagement of s 10. Accordingly, Nigel was a source for the purposes of s 10 and his information was capable of being information for those purposes.

Considering the interests of justice point, Mann J said that Nigel’s position as a freelance journalist who was paid for his tips (or work) was at the heart of the matter. He said that, in the majority of cases, a person in that position would not be a source who would expect, or be afforded, protection under s 10. They would likely be in an equivalent position to an employed journalist, for these purposes, and the latter could not claim protection. Like a news agency, such a person is likely to be right at the other end of the spectrum of types of informant from the informants at whom s 10 was typically aimed. That was not to say that freelance journalists can never invoke s 10, or can never have their material and identity protected under s 10, but in Mann J’s view their status means there is much less weight on the scales in the non-disclosure direction.

However, Mann J said, the position changes if there is an understanding of confidentiality. In fact, any allegation of a confidentiality arrangement is of “real significance”, he said. Witness evidence for News Group stated clearly enough that Nigel’s information was provided on the basis of confidentiality. The evidence was a little short on particularity, Mann J said, but if there was a short verbal understanding (no document was produced) then there may not have been much to be given by the way of particularisation. It was clear enough as it stood.

Mann J concluded that News Group had made a case for treating the material as source material that was entitled to protection under s 10, and the claimants had not quite made out a case for saying that the interests of justice required the removal of the blanket protection. Mann J considered that the claims to source protection for the fruits of a journalist who was (for these purposes) a freelance journalist, being paid for tips and effectively carrying on his/her profession, was a weak one, and it was only the confidentiality agreement that gave it any force. If the claimants had had a stronger case on the relevance of the material they sought they would probably have succeeded, but part of their case on relevance failed.

In the circumstances, the interests of justice were not sufficient to overcome the ostensible right of source protection.

However, it did not follow that the claimants should not have any of the material they sought. Nigel’s identity was known and he had been identified as a confidential source. Therefore, there was nothing about his identity that required protection. What required protection was his identity as a source of particular information, which did not require the blanket withholding of all of the documents in question. It required the redaction of material that identified Nigel as the source of particular information. Therefore, News Group should provide the documents, redacting only such material as indicated or might indicate the actual source material.

As for the identification of Nigel, given that his cover as a confidential source had in effect been blown, Mann J saw no justification in the protection of his name. Section 10 had been invoked against the disclosure of the information he provided not against the disclosure of his name. He was therefore minded to rule that Nigel could be named in full in the proceedings whenever appropriate. (Various claimants v News Group Newspapers Ltd [2020] EWHC 1435 (Ch) (4 June 2020) — to read the judgment in full, click here).