Mr Justice Lightman has just ordered the Financial Times, The Independent, The Guardian, The Times and Reuters to disclose documents which may identify a source. The judge made it clear that he was only so ordering because of the very exceptional circumstances of the case.
The circumstances were as follows.
Interbrew was contemplating a takeover of South African Breweries. It received from its confidential advisers a presentation containing highly confidential and market- sensitive information.
The source obtained a copy of the presentation and prepared "doctored" copies inserting false information. The doctored copies were sent to the five defendants, who thereafter in one form or another published the information. As a result, Interbrew successfully obtained orders against all five defendants, requiring them to preserve the documents and deliver them for safe custody to their solicitors. An expedited full hearing then took place.
The principal issue was whether Interbrew’s interest in obtaining the documents to identify the source was sufficiently compelling to override the defendants’ interest in protecting their sources. Interbrew’s claim was advanced on two principles, namely (a) breach of confidence; and
(b) that justice requires people who become involved in wrongdoing, even through no fault of their own, to co-operate in righting the wrong.
The breach of confidence claim failed. Interbrew could not particularise which parts of the documents were confidential. However, the second claim succeeded. The judge found that there were exceptional circumstances to justify overriding the provisions of Article 10 of the European Convention and Section 10 of the Contempt of Court Act 1981.
He said that the court must always start with the presumption that it is contrary to the public interest to require disclosure of press sources. This can only be done in exceptional circumstances where vital public or individual interests are at stake.
It would not be enough to require source disclosure simply to allow a disloyal employee or mole to be unearthed. There must also be the legitimate aim of eliminating the risk of future damaging breaches of confidence. The court order must also be likely to be effective in identifying the source.
In the present case, the source had deliberately mixed confidential information with false information, a "lethal concoction", which was also the serious criminal offence of creating a false market.
There was also a real risk of repetition if the source were not identified. Therefore, in the exceptional circumstances of the case, the order was made.
Jennifer McDermott is a partner
in the computers, communications and media unit at Lovells