Various Claimants v News Group Newspapers Ltd

Section 10 of the Contempt of Court Act 1981 protects information capable of identifying a journalistic source, including unpublished material. A source’s status as a journalist, payment for information and scale of activity do not prevent the protection from applying. Those matters may, however, reduce the weight given to protection when assessing whether disclosure is necessary in the interests of justice. Confidentiality is a significant factor, but an alleged confidentiality agreement remains open to evidential challenge. Where protection is justified, it extends only to information identifying the source of particular material. It does not justify blanket withholding of documents, dates or payment amounts where those matters do not identify the source or information supplied.

The claimants sought inspection of emails and payment records relating to an individual known as Nigel. The defendant withheld the material under the confidential-source proviso in an earlier disclosure order, relying principally on evidence that Nigel had supplied information to the Sun on the understanding that he would not be identified as the source.

The claimants argued that Nigel was a freelance journalist who had been paid for tips, that he was connected with unlawful information gathering, and that disclosure was necessary to support their generic case. The central issues were whether section 10 of the Contempt of Court Act 1981 was engaged, whether the interests of justice required disclosure, and, if protection remained justified, its proper scope.

1. Section 10 protection. The defendant established that section 10 was engaged. The material was supplied to a publisher with a view to possible publication, and the protection could extend to unpublished material and to material capable of identifying a source in relation to a particular story or tip.
2. Status of the source. A person’s status as a journalist, the fact that the person was paid, and the scale of the activity did not prevent that person from being a source for section 10 purposes. Those characteristics were relevant instead to the later assessment of the interests of justice. A freelance journalist would ordinarily attract less weight than a classic confidential tipster, but an actual understanding or agreement of confidentiality could materially strengthen the claim to protection.
3. Confidentiality evidence. Sanoma Uitgevers BV v Netherlands [2011] EMLR 4 did not establish that a bare assertion of confidentiality was unchallengeable. It removed any requirement for a written or binding contractual agreement, but the adequacy of the evidence remained a question of fact.
4. Interests of justice. The necessity threshold meant that disclosure had to be really needed, rather than merely useful or expedient. The court applied a fact-sensitive balancing exercise, taking account of the nature and role of the source, the apparent public-interest value of the information, the strength of the confidentiality evidence, the importance of the documents to the litigation, and the high public importance of source protection. The claimants’ relevance case was material but insufficient to overcome the protection.
5. Extent of protection and order. Protection did not require the blanket withholding of all documents. The defendant was ordered to serve redacted copies, removing only material that indicated or might indicate the particular story, tip or information supplied by Nigel. Dates, email participants and payment amounts were not, on the evidence before the court, within the necessary scope of redaction. The claimants therefore succeeded to that limited extent.