Richard v British Broadcasting Corporation (BBC) & Anor

Article 10 protects journalistic sources and may also protect material information supplied by a source, even where disclosure would not identify the source. The court must balance that protection against the applicant’s rights under Articles 6 and 8 and the legitimate need to obtain information for a fair trial. The protection is especially weighty where source identification is realistically threatened. Where the material merely concerns a source’s attributes or knowledge, its weight may be lower. A generalised test of “pressing social need” is not a separate threshold. The decisive question is whether, in all the circumstances, the balance justifies requiring disclosure.

The claimant brought privacy and data protection proceedings after the BBC reported a police search of his home during an investigation into historic child abuse. He sought a yes-or-no answer as to whether the BBC journalist knew that his confidential source was within Operation Yewtree, or had obtained the information from someone within it. The BBC refused, relying on journalistic source protection under section 10 of the Contempt of Court Act 1981 and Article 10. The issue was whether the information sought risked identifying the source or was otherwise protected, and whether disclosure was justified by its relevance to the claimant’s privacy and public-interest arguments.

1. The application succeeded. The BBC was required to provide a proper answer to the claimant’s question.
2. Article 10 and section 10 of the Contempt of Court Act 1981 protect journalistic sources. That protection can extend beyond information directly identifying a source to material about, or supplied by, the source, because disclosure may create a chilling effect.
3. Where source identification is in issue, the relevant threshold was expressed in Secretary of State for Defence v Guardian Newspapers Ltd [1985] AC 339 as a reasonable chance of disclosure, and in Sanoma v Uitgevers BV v The Netherlands [2011] EMLR 4 as a serious risk. The claimant’s question created only a very low risk of identifying the source.
4. The court rejected the suggestion that Goodwin v United Kingdom (1996) 22 EHRR 123 required two separate tests of pressing social need and overriding public interest. The former described the justification generally required under Article 10(2), while the latter emphasised the particularly strong protection accorded to confidential sources.
5. Following Malik v Manchester Crown Court [2008] EMLR 19, Article 10 was engaged even though the question did not directly seek the source’s identity. The balance required careful weight to be given to journalistic confidentiality, but also to the claimant’s Article 6 and Article 8 interests and his procedural entitlement to relevant information.
6. The journalist’s knowledge of the source’s connection with Operation Yewtree was materially relevant to the claimant’s case on privacy, culpability and the public-interest defence. That relevance outweighed the comparatively modest confidentiality interests engaged by the question. The BBC’s proposed assumption concerning confidentiality was not an adequate substitute because it did not address the source’s provenance or the journalist’s knowledge.