'Interbrew Five' to take source case battle to European courts

Interbrew Five: from left, Linnebank, Thomson, Kelner, Gowers and Rusbridger call for fresh dialogue with the FSA at the conference

The five editors defending their journalists’ sources in the Interbrew leak case are to take their case to the European courts and want the Contempt of Court Act changed to give journalists more protection than the current law allows.

Alan Rusbridger (The Guardian), Simon Kelner (The Independent) Andrew Gowers (Financial Times) Robert Thomson (The Times) and Geert Linnebank (editor-in-chief, Reuters) also want a fresh dialogue with the Financial Services Authority on whether it has the power to force them to reveal sources.

The newspapers and agency, which all lost to Interbrew in the High Court and the Appeal Court and have been refused leave to go to the House of Lords, have spent "tens of thousands of pounds" on the case already, according to Rusbridger at a financial reporting conference in London. But they still refuse to hand over their copies of the leaked document and say they do not know the identity of its source.

Interbrew claims the document was "doctored" and resulted in a disaster for it in the marketplace. The editors say this claim has never been contested in full court.

Interbrew has now withdrawn its demands for the document to be returned and has turned over the inquiry to the FSA.

The authority, however, has allowed one deadline (in September) for giving up the document to pass, and Gowers said: "There are even some people who feel this case is landing in the long grass. If so, fine.

"But the underlying issues won’t go away. We need to go to Europe to establish a new basis for the protection of journalistic sources and we need at some point to have an open debate with the FSA about how it intends to behave towards the press in future."

Kelner added: "In the debate over which should have the upper hand [the regulators or the journalists], it must be a question of transparency every time."

Rusbridger wants a new definition of the words "necessary in the interests of justice" to compel journalists to reveal sources, which were inserted in Section 10 of the act 21 years ago.

"There is something special about the issue of protection of sources which is different from all other areas of media law," he said. Where editors could take a calculated risk on libel or contempt, advised by armies of lawyers, "this is about members of the public, whistleblowers, people working for companies who feel uneasy about what they are doing or seeing. They don’t have lawyers to advise them," he said.

"They will just see on the news that a source has been betrayed by a newspaper, has been sacked or jailed. The chilling effect is not so much on the press but on potential sources. It will mean they won’t come forward in future."

"Anything that chills this is not just about the press but of fundamental concern to democracy itself."

"Protection of sources is regarded by all journalists as the primary professional duty of care," said Kelner. "To betray a source is not just a sin against journalism, but is an act of professional suicide. You are then known as an untrustworthy conduit for information."

There were many forces which drove the financial markets, he pointed out, but one of the primary ones was rumour and hearsay. "Many turn out to be false; others, which turn out to be true, are propagated by those in a position to have an interest in the stock involved," Kelner said. "It is part of the job of financial journalists to sift through this information and distinguish the false rumours from the true ones."

Of the Interbrew case in particular, Rusbridger asked: "On a scale of a parking ticket to a bomber, we have to ask where a technical breach of the financial services act in relation to the possible leaking of information about a takeover, lies. Should these things be of such over-riding public interest that there should be no protection for journalism?"

The editors disputed the view of the courts that non-disclosure of sources in this case would encourage a "market manipulators’ charter".

But it could become the case, said Gowers, that acceptance of the Interbrew verdicts might give companies the idea that they could complain to regulators about any information that they were uncomfortable to have in the public domain.

The newspapers’ case in Europe could take two years to be heard. In the meantime, they are still on a collision course with the FSA.

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