An unusual application to force a newspaper to reveal its sources was successfully resisted in the Northern Irish High Court recently.
The News Letter had published an article in January 1999 ("Omagh gang’s bloody history") which indicated that it had possession of confidential police papers naming members of the South Armagh Republican Action Group, allegedly responsible for the Omagh bombing.
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Five days later, MP Ian Paisley had also referred to the police dossier in a debate in the Commons. With the protection of Parliamentary privilege he had named, which the newspaper had not done, alleged terrorists.
The News Letter received letters from solicitors acting for three of these men. They said their clients had not been involved in any terrorist activity and were anxious to clear their names. They were instructed to engage the newspaper’s assistance. They requested copies of all documents contained in the dossier together with the identity of the person from whom the newspaper had received it. The newspaper of course declined. Eleven months later proceedings were issued.
In affidavits the claimants asserted that publication of the police documents to the newspaper and Mr Paisley might be actionable in libel or malicious falsehood. They wished to pursue any remedy they might have against those persons who had provided the defendants with the documents concerned.
The claimants relied upon the principle enunciated by the House of Lords in Norwich Pharmacal v Customs and Excise that, if through no fault of his own a person gets mixed up in the tortious acts of others so as to facilitate their wrong-doing, 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.
The newspaper relied on the rights to freedom of expression in Article 10 of the Convention for the Protection of Human Rights and on Section 10 of the Contempt of Court Act 1981, which provides: "No court may require a person to disclose… the source of information contained in a publication for which he is responsible, unless disclosure is necessary in the interests of justice or national security or for the prevention of disorder or crime."
Mr Justice Sheil indicated that he had to undertake a balancing act. He held that, important as the claimants’ legitimate interests in establishing the identity of the persons who had provided the information to the defendants with a view to suing them were, these did not outweigh the public interest in the protection of the newspaper’s confidential sources in order to ensure free communication of information to and through the press. Exercising his discretion, he refused the relief sought.
He declined also to make an order against Mr Paisley who relied on Article 98 of the Bill of Rights (1688) which provides that the freedom of speech and proceedings in Parliament ought not to be impeached or questioned in any court or place outside of Parliament.
Nicholas Alway is a partner in the media team at Farrer & Co