Anonymity of sources - 4 May 2001

"Respect for and protection of the privacy of those who choose to air their views in the most public of fora must take second place to the obligation imposed upon those who become involved in the tortious acts of others to assist the party injured by those acts."

Those were the words used by the judge in February in connection with an order against two internet service providers (ISPs), ordering the disclosure of documents which identified individuals who had posted defamatory comments on their websites.

Motley Fool Ltd had given an undertaking to its users that it was committed to protecting and respecting their privacy and that it would not disclose any information about individual users.

Additionally, the ISP argued that it should be entitled to rely on section 10 of the Contempt of Court Act, which is more usually used by journalists to protect their sources.

Section 10 provides that "no court may require a person to disclose nor is any person guilty of contempt of court or refusing to disclose the source of information contained in a publication for which he is responsible, lest it be established to the satisfaction of the court that disclosure is necessary in the interests of justice".

A journalist’s duty to protect his or her sources primarily arises from a contractual obligation, as did the ISP’s obligation in this case. In the event, the judge found that section 10 did not apply, as the ISP was not responsible for the publication (it exercised no editorial control over the material posted on the website).

However, the judge also said that if he was wrong in that view, he would have ordered disclosure in the interests of justice.

"Necessary in the interests of justice" means more than merely relevant; it is normally interpreted as "really needed".

Whether sufficiently strong reasons are shown in any particular case to outweigh the public interest in the press being able to protect the anonymity of its sources will depend on the facts of the case.

However, where a source may themselves be responsible for a civil wrong (for example, breach of confidence or defamation) the decision in this case indicates that the court is increasingly unlikely to allow an anonymous source to hide behind an obligation to protect that anonymity.

Dinah Spence is a solicitor in the Contentious Media Group at Charles Russell

By Dinah Spence

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