“Go on, make my day. Name the source and it will be my pleasure to sack them.” Fighting talk from Tony Blair before the most recent spring of leaks involving his own correspondence.
But such talk inevitably begs the question, why has the Government not taken action? Why has it not moved to force The Times and The Sun to reveal the source of the leaked documents?
Leaving aside political considerations, the Government will have considered its legal options. The advice it received will have centred on breach of copyright and confidence. Merit is not a requirement for literary copyright.
Regardless of their contents, the Government’s utterances do attract copyright protection. In some cases the documents have been re-printed in full. So on the face of it, the Government has a case to prevent disclosure of the documents (certainly in full) or to sue for damages.
The remaining issues of fair dealing and a defence of public interest have been canvassed in a case involving The Sun and the publication of stills from a Villa Windsor security camera (Hyde Park Residence Limited v Yelland & ors).
This case established that a public interest defence cannot apply to a claim in copyright. The defence that the documents were used fairly to report current events would have more weight, but the court is entitled to look at the extent and manner of use and indeed the way in which the documents were obtained.
Here is the crunch. If The Guardian is correct, then none other than the infamous Benjamin Pell obtained the Government memos. This individual has attracted some publicity of his own over the years and he has been involved in many bin-rifling cases. If Pell did obtain the documents then it is possible that they were stolen (he was convicted of theft in November last year – the case enforced the view that even “rubbish” can be stolen). So perhaps a “fair” dealing defence would be harder to establish.
A breach of confidence claim would of course turn on the countervailing claim by The Times and The Sun that disclosing the Government’s communications was in the public interest. Cases such as Lion Laboratories v Evans have established that for this defence to survive it is not necessary for the disclosure to reveal some wrongdoing by the embarrassed party.
Further, Reynolds v Times Newspapers has made it clear that the courts will be reluctant to conclude that publication of information in the field of politics is not in the public interest. If the Government argued that national security was at risk (as some have hinted at) The Times would insist that the Government should demonstrate that disclosure of the information actually contained in the documents would affect national security.
In either the copyright or confidence claim the Government’s prime motive would be identifying the source. It would have to show that there might be an internal mole in the heart of government and again, here is the crunch. The Government’s own investigation has, we are told, pointed the finger at Pell – hardly a government insider. But the fact that Pell is again linked with highly sensitive disclosures opens up a far wider issue for the press.
The need to protect one’s source is fundamental to effective journalism. Yet, as we have been reminded, this moral imperative does not excuse a breach of the law and the law has made it clear that a journalist can be required to disclose their source. The factors that influence the court’s decision on whether to order disclosure could spell danger for journalists using sources such as Pell.
First, the courts are impressed by the argument that companies (or perhaps governments) should not have to operate under the fear that a mole is operating in their ranks. Suspicion can be heightened when no other explanation is given to the court on how the confidential documents were obtained. This is precisely the predicament that newspapers find themselves in when they know that the source had nothing to do with an internal leak but can say no more on the subject.
Second, the greater the public interest in the disclosure and the more legitimately the material was acquired, the more reluctant the court will be to order disclosure. Sources such as Pell will almost inevitably lessen these defences. Indeed, how the documents are obtained could even go to the root of the public interest defence. As yet, no newspaper has been pursued for handling Pell’s stolen goods. But the more high-profile he becomes, the greater the likelihood that someone will take up the gauntlet.
Finally, while the Reynolds case may assist on the public interest argument, it also imposes journalistic “standards” that may be hard to meet if faced with a stolen document that is probably sent to the paper “anonymously” and with little corroborative information.
Pell may provide the scoop but he could also weaken the sanctity of the journalist’s source. The question for journalists is whether this is a price worth paying.
Simon Baggs is a solicitor at Wiggin & Co.