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Almost every week there seems to be another judgment or PCC decision adding to the body of authorities on the right of Privacy. In each case a decision is reached by balancing the interests of free speech against the need to deal with unauthorised disclosures of confidential information. The Court of Appeal recently carried out such a balancing exercise between protection of a journalist’s source in the interests of free speech, and deterrence of the unauthorised disclosure of confidential medical information. This case made it all the way to the doors of the House of Lords who refused to hear any further appeal.
The claimant, Mersey Care NHS Trust, (“the Hospital”) provided high security mental health care treatment to Ian Brady. In November 1999 the defendant Robin Ackroyd, a freelance investigative journalist, obtained certain confidential information relating to Ian Brady. On 2 December 1999 an article attributed to Gary Jones was published in The Mirror about Ian Brady’s hunger strike and subsequent forced feeding (“the Article”). The Article was clearly based on, and indeed contained verbatim extracts of, confidential medical records belonging to the Hospital. The Mirror declined to disclose to the Hospital the name of the person or persons who had provided it with the medical records, and so the Hospital sought an Order for disclosure of the source.
At the trial in April 2000 the Hospital obtained an order for disclosure of the source. This order was upheld after appeals to the Court of Appeal and the House of Lords (in 2002). To the Hospital’s surprise, compliance with the order revealed only the name of Mr Ackroyd and not the name of the original source. The Hospital invited Mr Ackroyd to divulge his source, and when he declined to do so it instituted further proceedings against Mr Ackroyd. At trial in January 2006, the Judge allowed Mr Ackroyd to keep his source confidential but gave the Hospital permission to appeal.
It is established law that where a person, albeit innocently, becomes involved in the wrongful act of another, that person comes under a duty to assist the person injured by the wrongful acts, by disclosing any information that might identify the wrongdoer. In this case the wrongful act was the disclosure of Confidential records by a Hospital employee. This duty to assist is balanced by the legally recognised need to maintain the right to freedom of expression by protecting journalistic sources.
The Court of Appeal had to examine whether the Hospital had shown, on the evidence, that it was both necessary, (i.e. there was a pressing social need) and proportionate for the court to order the journalist to disclose the name of his source. It stressed that the balancing exercise was a matter for the Judge hearing all the evidence to carry out and not for an appellate court. It emphasised that the Court of Appeal should respect the decision of the trial judge unless it was persuaded that he had erred in principle or reached a conclusion that was outside the ambit of conclusions that a judge could reasonably reach.
The Court of Appeal confirmed that the second case against Mr Ackroyd was different to the original case against The Mirror. The passage of time (it was 7 years since the original disclosure) had undermined some of the Hospital’s arguments in favour of disclosure as there had been a history of leaks of information from the Hospital, and a high turnover of staff. This reduced the need for disclosure as it would not act as a deterrent to prevent future leaks, and it was likely that the source was no longer involved with the Hospital. The evidence of Mr Ackroyd also showed that the source was motivated to make the original leak by a misguided public interest and not for financial gain, and furthermore, the stance of Mr Brady towards supporting the Hospital regarding the disclosure of his medical records had changed.
The Court stressed that as the underlying principles involved in dealing with this kind of dispute are now reasonably clear, it should not be necessary for cases of this kind to reach the appellate courts in the future.
Comment
There are a few points of guidance that can be usefully drawn from this case:
- Despite growing pressure to reinforce privacy rights the courts recognise that it remains important to protect journalistic sources.
- Sources may well have a better chance of remaining anonymous if they have leaked information for public interest reasons rather that financial gain.
- If disclosure of a source will not give rise to any possible benefit (e.g. a deterrent effect) it is less likely to be ordered.
- If the source for a programme/article is another Journalist, Editors should disclose this fact at an early stage.
- The legal principles to be considered in these ‘balancing act’ cases are now clear and accordingly cases of this type should rarely need to be referred for appeal.
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