CEDH · CASELAW;CLIN;ENG — 15 décembre 2009

.s3ABFC313 { font-size:10pt } .sEB86A30B { margin-top:0pt; margin-bottom:14pt; page-break-after:avoid } .sBB9EE52A { font-family:Arial } .sA241FE93 { margin-top:0pt; margin-bottom:18pt; text-align:justify; page-break-after:avoid; border-bottom:0.75pt solid #000000; padding-bottom:1pt } .s2EF62ED2 { margin-top:0pt; margin-bottom:0pt; font-size:12pt } .s4DDA3AA3 { font-family:Arial; font-weight:bold; font-style:italic } .s29100277 { font-family:Arial; font-weight:bold } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .s8F2B0B1B { margin-top:12pt; margin-bottom:12pt; page-break-after:avoid; font-size:12pt } .s9FF10068 { margin-top:0pt; margin-bottom:12pt } .sA36B60A1 { font-family:Arial; font-style:italic } .s5F48796F { margin-top:12pt; margin-bottom:0pt; text-align:justify } .s5CB9E8AB { margin-top:12pt; margin-bottom:0pt; text-align:justify; border-bottom:1pt solid #000000; padding-bottom:1pt } .sDF790F1E { margin-top:12pt; margin-bottom:0pt; text-align:center } .s7ED160F0 { text-decoration:none } .s3DC36BA9 { font-family:Arial; text-decoration:underline; color:#0069d6 } Information Note on the Court’s case-law No. 125 December 2009 Financial Times Ltd and Others v. the United Kingdom - 821/03 Judgment 15.12.2009 [Section IV] Article 10 Article 10-1 Freedom of expression Order requiring news media to disclose a leaked document liable to lead to the identification of their source: violation   Facts – The case concerned a complaint by the applicants – four newspapers and a news agency – that they had been ordered by the domestic courts to disclose a document that was liable to lead to the identification of one of their sources. In November 2001 a journalist at one of the newspapers had received a copy of a leaked document from an undisclosed source   X concerning a possible takeover bid by a company called Interbrew. The journalist had telephoned the company’s investment-bank advisers the same day to advise them that he had received the document and intended to publish it. An article was published at about 10   p.m. on the newspaper’s website and, referring to the leaked document, stated that Interbrew had been plotting a takeover bid. The other applicants had published articles on the same and following days, also referring to the leaked document and the possible takeover bid. Following a statement by Interbrew to the press, they continued to report on the issue, adding that the leaked document may have been doctored. The press coverage had a significant impact on the market shares of both Interbrew and the target company. Interbrew’s security and risk consultants made unsuccessful attempts to identify   X. Following advice from the consultants that access to the originals of the leaked document might vitally assist the investigation, Interbrew sought and obtained on 19   December 2001 an order requiring the applicants to disclose the leaked document. The High Court found in particular that X had deliberately leaked a lethal concoction of confidential and false information, with serious consequences for the integrity of the share market, and that there was an overriding need for disclosure of the document in the interests of justice and for the prevention of crime. That decision was upheld by the Court of Appeal, which concluded that the public interest in protecting the source of the leak was not sufficient to withstand the prevailing public interest in allowing Interbrew to seek justice against the source, the critical point being X’s evident aim “to do harm whether for profit or for spite…”. To date, the applicants have not delivered up the document and the disclosure order has not been enforced against them. Law – Article 10: The disclosure order of 19   December 2001 remained capable of being enforced and so, no matter how remote a possibility that was, constituted interference with the applicants’ freedom of expression. That interference was prescribed by law and pursued the legitimate aims of protecting the rights of others and preventing the disclosure of information received in confidence. Turning to the question whether the interference had been necessary in a democratic society, the Court noted that disclosure orders had a detrimental impact not only on the source, but also on the newspaper, whose reputation could be negatively affected in the eyes of future potential sources, and on members of the public, who had an interest in receiving information through anonymous sources and were also potential sources themselves. As to whether the conduct of the source could override the principle of non-disclosure, the Court explained that domestic courts should be slow to assume, in the absence of compelling evidence, that a source was clearly acting in bad faith with a harmful purpose and had disclosed intentionally falsified information. In any event, given the multiple interests in play, the conduct of the source could never be decisive in determining whether a disclosure order ought to be made but merely operated as one, albeit important, factor to be taken into consideration in carrying out the requisite balancing exercise. In carrying out that exercise, the Court focused on the following aspects of the applicants’ case: the purpose of the leak, the authenticity of the leaked document and the interests of Interbrew in identifying the source and bringing proceedings, and, lastly, the effect of the disclosure order. As regards the first of these aspects, the Court noted that a critical factor in the decision to order disclosure had been X’s purpose in leaking the document, which the Court of Appeal had described as being “on any view a maleficent one, calculated to do harm whether for profit or for spite…”. However, while accepting that there could be circumstances in which a source’s harmful purpose would in itself constitute a relevant and sufficient reason to order disclosure, the Court found that in the instant case the legal proceedings against the applicants had not allowed X’s purpose to be ascertained with the necessary degree of certainty for any significant weight to be placed on it. The second aspect – the question of the authenticity of the leaked document – could not be seen as significant either, as the domestic courts had reached no conclusion as to whether the document had been doctored and the question of what steps the journalists had taken to verify its accuracy could not be decisive, but had to be considered in the context of the case as a whole. Turning to the issue of Interbrew’s interest in identifying the source, the Court noted that it had sought disclosure both to prevent future leaks and to enable it to bring an action in damages. However, it was relevant here that, despite receiving prior notice of the intention to publish, Interbrew had not sought an injunction to prevent the initial publication. Moreover, the aim of preventing further leaks would only justify an order for disclosure of a source in exceptional circumstances where no reasonable and less invasive alternative means were available and where the risk was sufficiently serious and defined to render such an order necessary within the meaning of Article 10 §   2. Although the Court of Appeal had found that there had not been any less invasive means available, the Court noted that Interbrew had not given full details of the inquiries that had been made and that the Court of Appeal’s conclusion had been based on inferences. Lastly, as regards the effect of the disclosure order, the Court considered that no crucial distinction could be made between disclosure that would directly result and disclosure that might result in the identification of the source, as a chilling effect arose whenever journalists were seen to assist in the identification of anonymous sources. It sufficed that information or assistance had been required for the purpose of identifying   X. Accordingly, the interests in eliminating damage through the future dissemination of confidential information and in obtaining damages for past breaches of confidence were, even if considered cumulatively, insufficient to outweigh the public interest in the protection of journalists’ sources. Conclusion : violation (unanimously). Article 41: No claim made in respect of damage.   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes