whistle-blowing and the law – part i gavin millar qc and dr andrew scott
TRANSCRIPT
Whistle-blowingand the Law – Part I
Gavin Millar QC and Dr Andrew Scott
Overview
Rights-based jurisprudence
Potential liability for journalist having published ‘whistle-blown’ content
Protection of sources
Potential liability for journalist regarding newsgathering involving whistle-blower
Potential liability for source
Rights-based jurisprudence
Human Rights Act 1998 ‘domesticates’
European Convention standards
Basic scheme: ss 2, 3, and 6
Relevant rights: Arts 8 and 10 ECHR
Special rule on injunctions: s 12
Publishing risks I
Confidentiality - 3 requirements stated in Coco v Clark (1969), per Megarry J
information must have necessary quality of confidence
information imparted in circumstances giving rise to an obligation of confidence
unauthorized disclosure of the imparted information (to detriment of person to whom duty owed)
Publishing risks II
Copyright - Copyright, Designs and Patents Act 1988 (as amended)
confers exclusive rights on holder – s 16 ‘acts restricted by copyright’
pertains to ‘original’ copyright works of various types (s 1)
range of defences, but some limitations in the context of content obtained through whistleblowing
Publishing risks III
Misuse of private information - ‘new methodology’ involving a 2 stage assessment
Stage 1: is there a ‘reasonable expectation of privacy’ in the information concerned?
Stage 2: should the information be protected in the ‘ultimate balancing test’
Publishing risks IV
Is there a ‘public interest’ defence available in respect of these potential claims?
confidentiality: yes, but double test – (a) does information concern matters of public interest, (b) is it in public interest that confidence should be breached?
copyright: yes, but...privacy: not as such – an element in the ultimate
balancing test
What do we mean by the ‘public interest’?
Source protection I
General principle
Professional rule: PCC Editors’ Code, cl 14Legal principle: s 10, Contempt of Court Act 1981Legal principle: Goodwin v UK (1996) 22 EHRR 123:
“...freedom of expression constitutes one of the essential foundations of a democratic society and... the safeguards to be afforded to the press are of particular importance. Protection of journalistic sources is one of the basic conditions for press freedom... Without such protection, sources may be deterred from assisting the press in informing the public on matters of public interest. As a result the vital public-watchdog role of the press may be undermined and the ability of the press to provide accurate and reliable information may be adversely affected... an order of source disclosure... cannot be compatible with Article 10... unless it is justified by an overriding requirement in the public interest” (at [39])
Source protection II
Factors relevant to disclosure decision
degree of need for disclosure of source identity (nature of wrongdoing; risk of further wrongdoing – interim remedy / time delay; extent to which other reasonable avenues exist / explored)
motive (or conduct) of the sourcegeneral importance of watchdog role / chilling effect of
disclosuredegree of public interest in the particular story (?) impact on Art 2 and 3 rights
Source protection III
Civil cases
generally, one party in a civil action may seek disclosure from the other allowing identification
libel: factor relevant to assessment of ‘responsibility’ in Reynolds public interest defence concerns source (nb recognition of source protection issue)
independent of any pre-existing action, aggrieved party may seek information from journalist regarding source under a Norwich Pharmacal order
Source protection IV Criminal investigations
General: Police and Criminal Evidence Act 1984 (PACE), ss 9, 11, 13, 14 and Sch 1differentiates journalistic material from other information and
classifies it as ‘special procedure material’ or ‘excluded material’ depending on whether it is held in confidence
Sch 1 provides access criteria for special procedure material
Terrorism-related: Terrorism Act 2000, s 37 and Sch 5paras 5 and 6 provide for access to both categories
Other: Criminal Justice Act 1987 s2; Inquiries Act 2005 s21; Financial Services & Markets Act 2000, s13
Source protection V
Circumvention of protections through the use of other powers?
Interception of communications and surveillance - Regulation of Investigatory Powers Act 2000 interception of communications, Part I Chapter I (nb s 5)disclosure of communications data, Part I Chapter II (nb s
22)directed (nb ss 28 and 29)) and intrusive (s 32) surveillance,
Part II
Bugging of premises - Police Act 1997, Part III
Newsgathering risks I
Payment of source
source a witness in criminal proceedings: PCC Editors’ Code, cl 15; common law of contempt (?)
source a ‘criminal’: PCC Editors’ Code, cl 16source a police officer: Prevention of Corruption Act
1906, s 1 (nb US Foreign Corrupt Practices Act)general: Bribery Act 2010
Newsgathering risks II
General
source a police officer/ public official: conspiracy, aiding or abetting others to commit misconduct in a public office
source disclosing in breach of Official Secrets Act 1989: ss 5 and 6
Terrorism Act 2000 disclosure obligation: s 19
Liability of source I
Payment of source
source a ‘criminal’: Coroners and Justice Act 2009, Part 7 (exploitation proceeds orders)
source a police officer: Prevention of Corruption Act 1906, s 1
general: Bribery Act 2010
Liability of source II
General
source a juror: Contempt of Court Act 1981, s 8source a police officer or public official: misconduct in
a public officesource disclosing in breach of Official Secrets Act
1989: ss 1-4source an employee – breach of contract, but nb
Public Interest Disclosure Act 1998wider civil or criminal liability – eg breach of
confidence; Data Protection Act 1998, s 55
Dr Andrew Scott
Gavin Millar QC
Whistle-blowingand the Law – Part I
cij summer school - 16 July 2011