Reputation update: NGN ruling – source protection may be engaged even if identity of confidential source is known

Posted: July 10, 2020

News Group Newspapers, publisher of The Sun, narrowly managed to resist an application to inspect certain payment records and emails relating to a known individual, for whom NGN had asserted its right to source protection (Various Claimants v News Group Newspapers Ltd [2020] EWHC 1435 (Ch)).  On the balance of probabilities, the High Court considered the documents to be “source material” for which NGN was entitled to source protection, and the claimants had “not quite” made out a case that the interests of justice required the removal of that blanket protection.

NGN’s claim for source protection was, however, considered weak as the source was a freelance journalist.  It was only the fact that there was unchallenged evidence of a confidentiality agreement between NGN and the source that gave NGN’s claim to source protection any force.

Comment

Mr Justice Mann’s decision on whether or not to allow the claimants to inspect the documents was finely balanced, and NGN only just managed to tip the scales in its favour with its unchallenged evidence of a confidentiality agreement with the named source, “Nigel”.  By virtue of the judge’s specific directions on redactions, it seems likely that NGN will in fact have to allow the claimants to inspect much of the content of the documents in any event.  In that sense, NGN’s narrow victory might ultimately prove to be pyrrhic to some extent.

The situation in this case was, as the judge put it, “somewhat unusual” because the identity of the confidential source was known: the claimants knew his identity and Nigel’s surname appeared plainly in the order for disclosure, which was available for public inspection.  NGN had sought to protect only the fact that the individual was the source of various tips and/or newspaper stories, not his identity of itself.  Still, the court made it clear that, if the material would identify the individual as the source of those tips/stories, then the material was “prima facie protected”.

To read the full article, click here.  Written for Entertainment Law Review.

Eleanor Steyn, Partner, Simkins LLP