The protection of confidential sources lies at the heart of journalism, and it’s a concept which is instilled into journalists from the very beginning of their careers.

Most of the time, the issue of source protection does not impinge on the day-to-day working of reporters, but sometimes, journalists and the editors are called upon to make some very tough decisions indeed, under threat of contempt of Court and/or imprisonment.

So when the High Court decides in favour of protecting confidential sources, it’s worth taking note.

But first, a little background.

For those readers who work for companies which are members of IPSO, the position is very clear: clause 14 of the Editor’s Code of Practice says: “Journalists have a moral obligation to protect confidential sources of information”.

At Impress, however, the obligation is not quite so onerous, because clause 8.1 of its Standards Code says: “Publishers must protect the anonymity of sources where confidentiality has been agreed and not waived by the source, except where the source has been manifestly dishonest”.

But whichever Regulator governs your day-to-day work, the overriding legal principle is contained in Section 10 of the Contempt of Court Act 1981 which states that:

No court may require a person to disclose, nor is any person guilty of contempt of court for refusing to disclose, the source of information contained in a publication for which he is responsible, unless it be established to the satisfaction of the court that disclosure is necessary in the interests of justice or national security or for the prevention of disorder or crime.  (emphasis added).

Section 10 applies in respect of both explicitly revealing sources of information, and the disclosure of information which will, in itself, lead to disclosure of the source, e.g. if only a small number of people would have been able to provide the information sought, then that will result in identification of the source.

This is the issue which the High Court considered recently in the case of Stokoe Partnership Solicitors v Dechert LLP and Others.  The case itself is complex, but the application which was before the Court at the end of 2023 was one for disclosure of information against Franz Wild (the editor of The Bureau of Investigative Journalism), the BIJ itself, and The Times (the “Respondents”).

Stokoe Partnership Solicitors were seeking an Order for the Respondents to disclose documents which might assist in its claim that certain email accounts had been hacked.  The Respondents refused to disclose the relevant documentation because even in a redacted form, their disclosure would result in “jeopardising the respondents’ journalistic sources”.

The right not to reveal journalistic sources is protected by Section 10 of the 1981 Act and Article 10 of the European Convention on Human Rights (the right to freedom of expression).

In the well reported 2022 decision in Vardy v Rooney, the burden falls on the journalist who is relying on Section 10 to establish that if disclose is ordered, there is a “reasonable chance” or “serious risk” of compromising the source of the information.

In the current case, the Stokoe Partnership argued that the Respondents had not succeeded in establishing that there was a “reasonable chance” or “serious risk” of compromising their sources, because they had simply stated that the burden is met “without any explanation as to how or why that is the case”.

However, Mr. Justice Murray held that witness evidence from the Respondents, to the effect that even giving the information in a redacted form would risk revealing the sources of that information without explanation, was sufficient.

The Court accepted that it was possible for a document to exist “in a unique form, accessible only to a few persons who would be easily identified by someone whose interests might be harmed by the disclosure”.

Therefore, whilst the judge was sympathetic to the Stokoe Partnership’s case, and although there was no doubt that the Respondents were in possession of documents and information which was being sought, the Court ruled against disclosure because of the provision contained in Section 10.

So, what does this mean for publishers, editors, and reporters?

It’s certainly the case that source protection is not an issue that raises its head on a daily basis.  However, when it does have to be considered, it is clear that that the Courts will scrutinise the facts and consider the protections offered by Section 10 very carefully.

And the good news is that the Courts accept that the protection of confidential sources is one of the basic conditions for press freedom in a free society, and will not ride roughshod over the protections provided by the law.