Media Law 20: Protecting sources and source material Flashcards
(45 cards)
1
Q
basic media law principle on protecting sources
[1]
A
- if sources didn’t come forward because they though journalists couldn’t protect their identities then there would be huge amounts of info the public should know that would never be revealed
2
Q
main legal provisions (acts) under which journalists can be forced to reveal sources
[4]
A
- Contempt of Court Act 1981
- Police and Criminal Evidence Act 1984 (PACE)
- Official Secrets Acts
- Terrorism Act 2000
3
Q
how does a journalist being question in court differ from other people?
[1]
A
- if they refuse to answer a question (because they are protecting sources) it’s NOT instantly contempt of court like anyone else who doesn’t answer a question
4
Q
in what circumstances can a journalist not answering a question become contempt of court?
[3]
A
- national security
- interest of justice
- preventing crime / disorder
5
Q
how is European Court affecting decisions?
[2]
A
- protecting sources is part of Art 10 (“freedom of expression”)
- ruled recent attempts to force disclosure of sources unlawful
6
Q
how much of a grey area is the national security argument?
[2]
A
- NOT AT ALL
- X Ltd v Grampian (1991): ‘almost automatic’
7
Q
Secretary of State for Defence v Guardian Newspapers (1985)
[5]
A
- Guardian published arrival of cruise missiles based on leaked memo
- Gov’t wanted document back, but that meant revealing source
- Guardian argued the info they’d published did NOT compromise national security
- Gov’t argued having civil servants willing to leak military info WAS compromising national security
- Lords agreed, source disclosed, Sarah Tisdall got 6 months
8
Q
how much of a grey area is the interests of justice argument?
[3]
A
- fairly grey, but less lenient than media would hope
- originally assumed this affected active/planned cases
- X Ltd v Grampian (1991): disclosure necessary to enable someone to ‘exercise important legal rights and to protect themselves from serious legal wrongs’
9
Q
factors considered before forced disclosure of sources ‘in the interests of justice’
[2]
A
- nature of information (i.e. bigger the public interest, less likely to forced disclosure)
- method of obtaining info (legitimate methods less likely to force disclosure)
10
Q
example of where illegally obtaining info could still NOT force disclosure
[1]
A
- uncovering a wrongdoing
11
Q
X Ltd v Grampian (1991)
[4]
A
- trainee reporter (on The Engineer) Bill Goodwin told that Tetra was in financial difficulties
- put it to Tetra, who realised his source had a confidential document
- Tetra argued source should be disclosed in ‘interests of justice’ so they could bring proceedings to get document returned
- Lords agreed
12
Q
what happened after X Ltd v Grampian (1991)?
[3]
A
- Goodwin refused to disclose source, fined 5,000 for contempt of court
- took case to ECtHR: Goodwin v UK (1996)
- ruled UK in breach of Art 10, and public interest of not disclosing sources outweighed Tetra’s case
13
Q
other examples of source disclosure cases based on the ‘interests of justice’
[5]
A
- Camelot Group plc v Centaur Communications Ltd (1999)
- Ashworth Security Hospital v MGN Ltd (2002)
- Merseyside NHS Trust v Ackroyd (2006)
- John v Express Newspapers (2000)
- Financial Times Ltd & Ors v UK (2009)
14
Q
Camelot Group plc v Centaur Communications Ltd (1999)
A
- Camelot employee leaked draft accounts (putting directors in bad light) to Marketing Week
- court ruled disclosing source (disloyal employee) outweighed public interest argument
15
Q
Ashworth Security Hospital v MGN Ltd (2002)
[4]
A
- Mirror paid journalist for story on Ian Brady being force fed at Ashworth
- Mirror refused to reveal identity of journalist because this would lead to source being disclosed
- case went to Lords who ordered journalist disclosed
- freelancer Robin Ackroyd then came forward voluntarily
16
Q
Mersey NHS Trust v Ackroyd
[4]
A
- hospital took Ackroyd to court
- High Court refused to make him disclose sources
- he was a responsible journalist, source had not acted on money, security had been tightened making new leak unlikely
- public interest + ‘no pressing social need’ for disclosure
17
Q
Financial Times and Ors v UK (2009)
[2]
A
- previously: disgruntled Interbrew employee had leaked presentation, Lords ordered media should disclose them because they were ‘maleficent’ and ‘calculated to do harm’
- ECtHR held appeal, saying Interbrew’s needs were outweighed by public interest of protecting sources
18
Q
what more trivial reason might courts give to NOT force disclosure in interests of justice
[1]
A
- claimant hadn’t looked into alternative ways to identify source, so going too court not ‘necessary’ yet
19
Q
example of an overly hasty claimant trying to get courts to force disclosure of sources
[2]
A
- Elton John: John v Express Newspapers (2000)
- details of his accounts leaked, he went straight to court
20
Q
obvious (general) example of order of source disclosure to ‘prevent crime’
[1]
A
- identifying the source would stop a planned crime from happening
21
Q
wider view on disclosure to ‘prevent crime’ by courts
[1]
A
- like national security, ‘almost automatic’
22
Q
problems with PACE laws covering info required by the police
[3]
A
- police can demand access to any journalist info that might help with investigation
- puts reporters/photographers at risk in violent situations where participants might be ID’d later
- sources dubious about confidentiality in situations where police can demand info
23
Q
do journalists have to answer police’s questions?
[3]
A
- NO, no one does
- many believe this counts as obstructing the police, NOT SO!
- you must be ‘wilfully’ obstructing (i.e. obstructing without legal reason to do so)
24
Q
what aren’t you allowed to tell police
[1]
A
- false / misleading info
25
how can police get the info they want?
| [2]
- they have to go to court (using powers under PACE)
| - but even then that only includes documents or recorded info
26
how do rules on police seizure of journalist materials differ to non-journalistic stuff
[2]
- stricter
| - e.g. police must apply to circuit judge rather than magistrate
27
how does PACE define journalistic materials?
| [4]
- records or documents
- 'acquired or created for the purposes of journalism'
- held in the possession of the person who acquired or created it for those purposes
- includes research material as well as actual copy
28
what counts as 'excluded material' from police seizures
- material held under an 'undertaking, restriction or obligation of confidence'
- includes material given on condition that source not revealed
- confidence has to be in place from point at which material acquired
29
DEF: all other (non-confidential journalistic material)
- special procedural material
30
DEF: what the police need to get from circuit judge to seize journalistic material
- production order (OR search warrant, in some cases)
| - application must be known to media, right to representation
31
what needs satisfying before production order for excluded material is granted? what are the results of this?
[4]
- reasonable grounds for believing material on premises
- search warrant would have been likely under pre-PACE legislation
- this makes it very rare that excluded material will ever be seized
- exceptions: stolen material, Official Secrets Act
32
what needs satisfying before production order for special procedure material is granted?
[5]
- serious offence has been committed
- it's on the premises
- likely to be of substantial value to investigation, and then admissible evidence
- other attempts failed or were bound to fail
- in public interest
33
who does the 'public interest' argument when applying for production order for special procedure material?
[1]
- police more often than journalists (surprisingly), if previous court decisions are anything to go by
34
Bright v Central Criminal Court (2001)
| [3]
- police applied for correspondence between reporter and David Shayler (ex-MI5 accusing them of wrongdoing)
- order initially granted BUT overturned by divisional court
- journalistic material should not be seized if involved in genuine investigation into 'corrupt or reprehensible activities' by public body, UNLESS in public interest (this was not)
35
when (and why) do police seek search warrants?
| [3]
- usually when production orders refused (but often initially too)
- don't have to alert journalist
- no right to put case against warrant to a judge
- police can remove any material from premises, without having to go back to court
36
what do police need to prove to get search warrant?
| [5]
- original stuff in PACE, plus ONE of following:
- not practicable to communicate with anyone who can grant access to premises
- not practicable to communicate with anyone who can grant access to material
- info subject to restriction on disclosure / obligation to secrecy, and will likely be disclosed
- serving notice of order might seriously prejudice investigation
37
new warrant under Serious Organised Crime and Police Act 2005
[4]
- 'all premises' warrant
- warrant to search any premises occupied/controlled by a person
- could mean journos' workplace and home
- judge must be satisfied that it's not practicable for police to name all premises they need to search, and there's reasonable grounds to search them
38
advice to journos trying to keep documents from police
| [2]
- after production order applied for, destruction becomes contempt of court
- BEFORE then it's not, so try destroying them if you suspect the police will want them
39
Official Secrets Acts
| [3]
- police can demand materials (w/o going to judge in 'emergency' cases)
- police can search any premesis and remove material related to Acts
- illegal not to return gov't docs to gov't official when asked to do so
40
most significant change brought in by Terrorism Act 2000
| [1]
- right to not answer police questions does NOT count in terrorism cases
41
main ways in which Terrorism Act 2000 affects journalists
| [5]
- MUST reveal info about terrorists as soon as you get it
- MUST reveal info about funding of terrorism
- illegal to collect/record/possess info (inc. photos) that might aid a terrorist attack
- illegal to disclosure info about / interfere with investigation into likely terrorist attack
42
defence against Terrorism Act 2000
| [1]
- 'reasonable excuse' not to disclose info (undefined in Act)
43
what must judge be satisfied of before ordering seizure of journalistic materials under Terrorism Act 2000?
[5]
- material is either excluded or special procedure
- does not include material subject to legal privilege
- for purposes of terrorism investigation
- substantial value to terrorist investigation
- public interest
44
case of Shiv Malik (2008)
- journalist refusing to hand over materials used for writing book on terrorism
- court agreed original order was too wide, limited to just info on specific terrorist
- Malik risked committing offence under Terrorism Act 2000, but police did not charge
45
Sally Murrer case (2008)
| [3]
- police arrested her and 3 others (inc. former police lover and friend) for leaking info to media
- included Met police bugging of Sadiq Khan
- judge said police breached Art 10 of HRA and were bringing criminal action stop info they didn't want coming out
