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...