The Source of the Problem - Section 10 Contempt of Court Act 1981

Originally published September 2003

The issue

Intensive coverage of the Hutton Inquiry has highlighted once again just how much trouble an anonymous source can make, not only for the employer he sneaks on but also for the journalist who laps it up and publicises it. What can the employer do to find out where the leak is coming from, and how can the media defend themselves?

The analysis

The protection of a confidential source is an article of faith to journalists, though the strength of commitment to the principle is little appreciated outside the industry. The fact is that news stories often start and some end up relying solely on a single secret contact, a person who would not talk without the assurance of anonymity. In theory the law recognises the importance of this strange relationship so as to ensure the open discussion of matters of important public interest. The provision for freedom of expression in Article 10 of the Human Rights Act 1998 has reinforced this way of thinking, but the law actually dates back to the Contempt of Court Act of 1981. It is Section 10 of this Act that says: "No court may require a person to disclose, nor is any person guilty of contempt of court for refusing to disclose, the source of information contained in a publication for which he is responsible, unless it be established to the satisfaction of the court that disclosure is necessary in the interests of justice or national security or for the prevention of disorder or crime"

In practice, the protection offered has not been as effective as it sounds, and journalists who have given guarantees to their sources often find themselves in a terrible dilemma - betray them or potentially face a prison sentence for contempt. In 1989, Bill Goodwin, a young journalist on Engineer magazine began a seven year legal battle to protect his source from Tetra Business Systems. And only last year, Steve Panter of the Manchester Evening News, refused to comply with a court order to expose his alleged contact from the local police force who was supposed to have given him the name of the prime suspect in Manchester's IRA bombing.

The employer's attitude is obviously rather different. The leak may be a continuing threat to commercially confidential information, or the information given out might be inaccurate. Either way, the mischief has to be stopped. If caught in time, action can be taken to restrain publication by injunction. In the same proceedings, an application...