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Protection for sources and private identities is limited



Disclosure of sources and private information is top of the media law agenda after recent rulings on the limits of confidentiality.

Sheffield Wednesday Football Club and its executives succeeded in obtaining a court order compelling a website operator to release details of subscribers who had allegedly written defamatory content in 14 online posts under pseudonyms.

Neil Hargreaves, operator of unofficial supporters’ website Owlstalk, was ordered to disclose the details of subscribers responsible for five of the posts after a judge assessed their privacy and data protection rights.

The judge decided he had a discretionary power, under a case called Norwich Pharmacal, to order Hargreaves to disclose the information because it was relevant to a potential libel claim and the website had facilitated the alleged wrongdoing.

After balancing the right to freedom of expression against the competing right to reputation, the judge declined to order disclosure for nine of the posts because although they were arguably defamatory, they were not particularly serious attacks on reputation.

However, he found the other five posts, alleging dishonesty, greed and untrustworthiness, were serious enough for subscribers’ privacy rights to be overridden.

In a separate case, the BBC was ordered to give the football club’s chairman information it held on those who had posted contentious remarks on a Radio 5 Live online message board.

Both Hargreaves and the BBC adopted a neutral stance in court and were awarded their costs of being represented.

Then on Halloween, Channel 4 had a fright when it failed in its bid to protect the identity of two confidential sources who had contributed to a documentary on the role of photographers on the night Princess Diana died.

Mr Justice Eady ordered the broadcaster to give material relating to the anonymous sources to Lord Justice Scott Baker, who is currently presiding over the Princess’s inquest, even though that was likely to lead to their identification.

He ruled this was proportionate and in the interests of justice, despite journalists’ obligation to protect sources.

In other developments, the Information Commissioner has issued a useful decision that recordings of publicly heard court proceedings are available under the Freedom of Information Act.

An applicant had asked the Ministry of Justice to release the audio record of a hearing. The authority claimed an absolute exemption under S32 of the Act on the basis that it was a document created by a court or its staff for the purposes of proceedings.

It also claimed an absolute exemption under S21, saying the information was reasonably accessible by other means if the applicant applied to the court.

But the Commissioner decided a court’s audio record is not a document within the meaning of S32, and it is not reasonably accessible by other means if an applicant has to go the trouble and expense of making a court application.

An earlier ruling of the Information Tribunal in 2005 held that transcripts of court hearings should be available under FoI.


To contact Tony Jaffa or Nigel Hanson telephone 0800 0731 411 or e-mail [email protected] or [email protected]