CEDH · CASELAW;REPORTS;ENG — 1 mars 1994

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                        EUROPEAN COMMISSION OF HUMAN RIGHTS                          Application No. 17488/91                               William Goodwin                                   against                             the United Kingdom                          REPORT OF THE COMMISSION                          (adopted on 1 March 1994)                              TABLE OF CONTENTS                                                                    page   I.     INTRODUCTION       (paras. 1-18) . . . . . . . . . . . . . . . . . . . . . . . . 1         A.    The application            (paras. 2-4) . . . . . . . . . . . . . . . . . . . . . . 1         B.    The proceedings            (paras. 5-13). . . . . . . . . . . . . . . . . . . . . . 1         C.    The present Report            (paras. 14-18) . . . . . . . . . . . . . . . . . . . . . 2   II.    ESTABLISHMENT OF THE FACTS       (paras. 19-41). . . . . . . . . . . . . . . . . . . . . . . . 3         A.    Particular circumstances of the case            (paras. 19-41) . . . . . . . . . . . . . . . . . . . . . 3         B.    Relevant domestic law            (paras. 42). . . . . . . . . . . . . . . . . . . . . . . 7   III.   OPINION OF THE COMMISSION       (paras. 42-70). . . . . . . . . . . . . . . . . . . . . . . . 8         A.    Complaint declared admissible            (para. 43) . . . . . . . . . . . . . . . . . . . . . . . 8         B.    Point at issue            (para. 44) . . . . . . . . . . . . . . . . . . . . . . . 8         C.    Article 10 of the Convention            (paras. 45). . . . . . . . . . . . . . . . . . . . . . . 8         D.    Article 10 para. 1 of the Convention            (paras. 46-48) . . . . . . . . . . . . . . . . . . . . . 8         E.Article 10 para. 2 of the Convention            (para. 49-69). . . . . . . . . . . . . . . . . . . . . . 9              i.     `prescribed by law'                  (paras. 50-57) . . . . . . . . . . . . . . . . . . 9              ii.    legitimate aim                  (para. 58) . . . . . . . . . . . . . . . . . . . .10              iii.   'necessary in a democratic society'                  (paras. 59-69) . . . . . . . . . . . . . . . . . .10                    CONCLUSION                  (para. 70) . . . . . . . . . . . . . . . . . . . .13         DISSENTING OPINION OF MR. S. TRECHSEL JOINED BY       MM. C. A. NØRGAARD, F. ERMACORA, G. JÖRUNDSSON,       H. G. SCHERMERS AND J.-C. GEUS. . . . . . . . . . . . . . . .14   APPENDIX I        HISTORY OF THE PROCEEDINGS . . . . . . . . . . . .15   APPENDIX II       DECISION OF THE ADMISSIBILITY. . . . . . . . . . .16   I.     INTRODUCTION   1.     The following is an outline of the case as submitted to the European Commission of Human Rights, and of the procedure before the Commission.   A.     The application   2.     The applicant is William Goodwin, a British citizen born in 1966 and resident in London. He is represented by Mr. Geoffrey Bindman, a solicitor practising in London.   3.     The application is directed against the United Kingdom.   The respondent Government are represented by Mr. Iain Christie as Agent, from the Foreign and Commonwealth Office.   4.     The case concerns the complaint of the applicant, a journalist, that the disclosure order made against him which required him to reveal the identity of a source of information interfered unjustifiably with his freedom of expression. It raises issues under Article 10 of the Convention.   B.     The proceedings   5.     The application was introduced on 27 September 1990 and registered on 26 November 1990.   6.     On 7 April 1992, the Commission decided to communicate the application to the respondent Government for their written observations on the admissibility and merits of the application.   7.     The Government submitted their written observations on 18 August 1992.   The applicant submitted his written observations in reply on 3 December 1992.   8.     The Commission granted the applicant legal aid on 11 December 1992.   9.     On 2 April 1992, the Commission decided to invite the parties to an oral hearing on the admissibility and merits.   10.    At the hearing which was held on 9 September 1993, the Government were represented by   Mr. Iain Christie as Agent, Mr. Michael Baker QC, Counsel, and Mr. Oliver Parker, Adviser. The applicant was represented by Mr. Geoffrey Robertson QC, Counsel, Mr. Geoffrey Bindman, Solicitor, and Mr. Robert Sack and Ms. Anne Hilker, lawyers from New York.   11.    On 7 September 1993, the Commission declared the application admissible. The parties were then invited to submit any additional observations on the merits of the application.   12.    On 25 October 1993, the Government submitted further observations on the merits.   13.    After declaring the case admissible, the Commission, acting in accordance with Article 28 (b) of the Convention, placed itself at the disposal of the parties with a view to securing a friendly settlement of the case.   In the light of the parties' reactions, the Commission now finds that there is no basis on which a friendly settlement can be effected.   C.     The present Report   14.    The present Report has been drawn up by the Commission   in pursuance of Article 31 of the Convention and after deliberations and votes, the following members being present:              MM.    C.A. NØRGAARD, President                  S. TRECHSEL                  A. WEITZEL                  F. ERMACORA                  G. JÖRUNDSSON                  A.S. GÖZÜBÜYÜK                  H.G. SCHERMERS                  H. DANELIUS            Mrs.   G.H. THUNE            Sir    Basil HALL            MM.    C.L. ROZAKIS                  L. LOUCAIDES                  J.-C. GEUS                  B. MARXER                  G.B. REFFI                  I. CABRAL BARRETO                  B. CONFORTI   15.    The text of the Report was adopted by the Commission on 1 March 1994 and is now transmitted to the Committee of Ministers in accordance with Article 31 para. 2 of the Convention.   16.    The purpose of the Report, pursuant to Article 31 para. 1 of the Convention, is         1)   to establish the facts, and         2)   to state an opinion as to whether the facts found disclose           a breach by the State concerned of its obligations under           the Convention.   17.    A schedule setting out the history of the proceedings before the Commission is attached hereto as APPENDIX I and the Commission's decision on the admissibility of the application as APPENDIX II.   18.    The full text of the parties' submissions, together with the documents lodged as exhibits, are held in the archives of the Commission.   II.    ESTABLISHMENT OF THE FACTS   A.     Particular circumstances of the case   19.    The applicant is a journalist.   In August 1989, he began working for the publication "The Engineer".   20.    On 2 November 1989, the applicant was telephoned by a source, which gave him information about a company, X Ltd.. The information was unsolicited, was not in exchange for payment and the applicant alleges that he had no reason to believe that the information was derived from a stolen or confidential document.   The information was given on an unattributable basis.   21.    On 6 and 7 November 1989, the applicant telephoned X Ltd. to check the facts and seek their comments on the information which he had been given.   He prepared a draft article for publication in "The Engineer" to the effect that the company was in the process of raising a £5 million loan and had financial problems as a result of an expected loss of £2.1 million for 1989.   22.    X Ltd. alleged that the information was derived from a draft of its confidential Corporate Plan which had gone missing on 1 November 1989 after it had been left by an accountant in an unlocked office on X Ltd.'s premises.   On 7 November 1989, X Ltd. applied for and obtained an ex parte interim injunction to restrain the publishers of "The Engineer" from publishing any information derived from the Corporate Plan.   23.    On 8 November 1989, a writ was issued against the publishers claiming an injunction and a notice of motion was served seeking, inter alia, an order that the publishers disclose the identity of their source.   24.    In an affidavit dated 8 November 1989, the Chief Executive Officer of X Ltd. stated that if the plan was made public it could result in a complete loss of confidence in the company by its creditors, its potential creditors, its customers and in particular its suppliers, with a risk of a loss of orders and refusal to supply the company with goods and services. Such loss of confidence would also inevitably lead to the banks and venture capitalists involved in the company re-financing discussion reconsidering their position. That in turn could result in the winding up of the company with consequent job losses to approximately 400 employees. He confirmed that the intention of the company was to prevent any further disclosure and that if they became aware of the identity of the source, X Ltd. would commence proceedings for further interlocutory relief to restrain publication and claiming such damages arising from any publication.   25.    On 10 November 1989, the publishers submitted their evidence for the motion, including an affidavit by the applicant in which he referred to notes of his conversation with his source.   26.    On 14 November 1989, at the hearing of the motion, X Ltd. obtained an order that the publishers should disclose the applicant's notes, which identified his source, pursuant to section 10 of the Contempt of Court Act 1981 ("the 1981 Act").   27.    On 15 November 1989, X Ltd. were given leave to join the applicant and his employer to the proceedings.   The judge gave all three defendants until 3,00 p.m. on 16 November 1989 to deliver up the notes.   He also granted interim injunctions against the two additional defendants, the applicant and his employer.   28.    On 16 November 1989, X Ltd. informed all national newspapers and relevant journals of the injunction.   29.    On 17 November 1989, the High Court made an order that the applicant represented all persons who received the plan or information derived from it without the authority of X Ltd. and that such persons should, inter alia, deliver up any copies of the plan in their possession.   The motion was then adjourned for the applicant to bring this order to the attention of his source.   The applicant declined to do so however.   30.    On 22 November 1989, the applicant was again ordered to disclose his notes: this time by the deadline of 3.00 pm on 23 November 1989. Mr. Justice Hoffmann stated that it was necessary "in the interests of justice" for the purposes of section 10 of the 1981 Act for the source's identity to be disclosed to enable X Ltd. to bring proceedings against the source to recover the document, to obtain an injunction preventing further publication or to seek damages for the expenses to which they had been put.   Although the applicant was an innocent recipient of the information, the judge concluded that the source who had telephoned the applicant had probably seen the stolen document and indeed was probably the thief. He was satisfied that there was strong prima facie evidence that X Ltd. had suffered a serious wrong by the theft of its confidential file and that it would suffer serious commercial damage if the information was disclosed.   He dismissed the argument of the applicant that it was in the public interest for the information to be disclosed, stating that there was nothing to show that previously published information about the company was false and that there was no legal or moral ground for making the information available to customers, suppliers or competitors.   31.    The applicant applied the same day to the Court of Appeal for a stay.   The stay was refused but the Court of Appeal substituted an order that the applicant either disclose his notes to X Ltd. or deliver them to the Court in a sealed envelope with accompanying affidavit. The applicant did not comply with either order by the deadline.   32.    On 23 November 1989, the applicant lodged an appeal against the order of 22 November on the grounds that the disclosure order was not necessary in the interests of justice, and that the public interest in publication outweighed the interest in preserving confidentiality, and that since the applicant had not facilitated the breach of confidence, a disclosure order against him was not valid.   The same day, the applicant was served with a notice of motion seeking his committal for contempt.   33.    On 24 November 1989, in a hearing in the High Court it was conceded by the applicant's counsel that he was in contempt.   The motion was however adjourned pending the applicant's appeal.   34.    On 29 November 1989, the Court of Appeal began to hear the applicant's appeal.   While it heard counsel for the publisher and the applicant's employer, it refused to hear applicant's counsel since the applicant was in continuing contempt.   35.    On 12 December 1989, the Court of Appeal dismissed the appeal against the disclosure order but granted leave to appeal to the House of Lords.   Lord Justice McCowan noted that the applicant must have been "amazingly naive" if it did not occur to him that the source was at the very least guilty of a breach of confidence.   36.    The appeal was heard before the House of Lords between 5 and 8 March 1990.   37.    On 4 April 1990, the House of Lords dismissed the appeal.   It applied the principle expounded by Lord Reid in a previous leading case and applied in previous cases:         "<The authorities> seem to me to point to a very reasonable       principle that if through no fault of his own a person gets       mixed up in the tortious acts of others so as to facilitate       their wrong-doing he may incur no personal liability but he       comes under a duty to assist the person who has been       wronged by giving him full information and disclosing the       identity of the wrongdoers." (Norwich Pharmacal Co. v.       Customs and Excise Commissioners [1974] A.C. 133).   38.    Lord Bridge, in one of the five separate speeches given in the applicant's case, stated:         "Whenever disclosure is sought, as here, of a document       which will disclose the identity of a source within the       ambit of section 10, the statutory restriction operates       unless the party seeking disclosure can satisfy the court       that 'disclosure is necessary' in the interests of one of       the four matters of public concern that are listed in the       section. I think it is indisputable that where a judge asks       himself the question: `Can I be satisfied that disclosure       of the source of this information is necessary to serve       this interest?' he has to engage in a balancing exercise.       He starts with the assumptions, first, that the protection       of sources is itself a matter of high public importance,       secondly, that nothing less than necessity will suffice to       override it, thirdly, that the necessity can only arise out       of concern for another matter of high public importance,       being one of the four interests listed in the section ..."   39.    He referred to a number of other cases in relation to how the balancing exercise should be conducted (e.g. Secretary of State for Defence v. Guardian Newspapers Ltd [1985] A.C. 339) and continued:         "It would be foolish to attempt to give comprehensive       guidance as to how the balancing exercise should be carried       out. But it may not be out of place to indicate the kind of       factors which will require consideration.   In estimating       the importance to be given to the case in favour of       disclosure there will be a wide spectrum within which the       particular case must be located.   If the party seeking       disclosure shows, for example, that his very livelihood       depends upon it, this will put the case near one end of the       spectrum.   If he shows no more than that what he seeks to       protect is a minor interest in property, this will put the       case at or near the other end.   On the other side the       importance of protecting a source from disclosure in       pursuance of the policy underlying the statute will also       vary within a wide spectrum.   One important factor will be       the nature of the information obtained from the source.       The greater the legitimate public interest in the       information which the source has given to the publisher or       intended publisher, the greater will be the importance of       protecting the source.   But another and perhaps more       significant factor which will very much affect the       importance of protecting the source will be the manner in       which the information was itself obtained by the source. If       it appears to the court that the information was obtained       legitimately this will enhance the importance of protecting       the source.   Conversely, if it appears that the information       was obtained illegally, this will diminish the importance       of protecting the source unless, of course, this factor is       counterbalanced by a clear public interest in publication       of the information, as in the classic case where the source       has acted for the purpose of exposing iniquity.   I draw       attention to these considerations by way of illustration       only and I emphasise once again that they are in no way       intended to be read as a code ...         In the circumstances of the instant case, I have no doubt       that Hoffmann J. and the Court of Appeal were right in       finding that the necessity for disclosure of Mr. Goodwin's       notes in the interests of justice was established.   The       importance to the plaintiffs of obtaining disclosure lies       in the threat of severe damage to their business, and       consequentially to the livelihood of their employees, which       would arise from disclosure of the information contained in       their corporate plan while their refinancing negotiations       are still continuing.   This threat, accurately described by       Lord Donaldson of Lymington M.R. [1990] 2 W.L.R. 421, 439,       as 'ticking away beneath them like a time bomb' can only be       defused if they can identify the source either as himself       the thief of the stolen copy of the plan or as a means to       lead to the identification of the thief and thus put       themselves in a position to institute proceedings for the       recovery of the missing document.   The importance of       protecting the source on the other hand is much diminished       by the source's complicity, at the very least, in a gross       breach of confidentiality which is not counterbalanced by       any legitimate interest which publication of the       information was calculated to serve.   Disclosure in the       interests of justice is, on this view of the balance,       clearly of preponderating importance so as to override the       policy underlying the statutory protection of sources and       the test of necessity for disclosure is satisfied ..."   40.    Lord Templeman concurring also commented that the applicant ought to have "recognised that (the information) was both confidential and damaging".   41.    On 10 April 1990, the High Court fined the applicant £5 000 for contempt.   B.     Relevant domestic law   42.    Section 10 of the Contempt of Court Act 1981 provides:         "No court may require a person to disclose, nor is a person       guilty of contempt of court for refusing to disclose the       source of information contained in the 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       prevention of disorder or crime."   III.   OPINION OF THE COMMISSION   A.     Complaint declared admissible   43.    The Commission has declared admissible the applicant's complaint concerning the imposition of a disclosure order requiring him to reveal the identity of a source.   B.     Point at issue   44.    The issue to be determined is whether there has been a violation of Article 10 (Art. 10) of the Convention.   C.     Article 10 (Art. 10) of the Convention   45.    Article 10 (Art. 10) of the Convention provides as relevant:         "1.   Everyone has the right to freedom of expression.   This       right shall include freedom to hold opinions and to receive and       impart information and ideas without interference by public       authority and regardless of frontiers...         2.    The exercise of these freedoms, since it carries with it       duties and responsibilities, may be subject to such formalities,       conditions, restrictions or penalties as are prescribed by law       and are necessary in a democratic society, in the interests of       national security, territorial integrity or public safety, for       the prevention of disorder or crime, for the protection of health       or morals, for the protection of the reputation or rights of       others, for preventing the disclosure of information received in       confidence, or for maintaining the authority and impartiality of       the judiciary."   D.     Article 10 para. 1 (Art. 10-1) of the Convention   46.    The applicant submits that the disclosure order made by the High Court and confirmed on appeal requiring him to reveal an anonymous source constituted an interference with his freedom of expression guaranteed by Article 10 (Art. 10) of the Convention.   47.    The Government does not dispute that the measure constituted such an interference.   48.    The Commission finds that the disclosure order has a potential chilling effect on the readiness of people to give information to journalists such as the applicant.   It also considers that the order in itself which exerts coercion on the applicant to reveal information which he received on a non-attributable basis constitutes a restriction on his right to freedom of expression.   There are circumstances in which a   "negative right" is to be implied in Article 10 (Art. 10) not to be compelled to give information or to state an opinion (see eg. No. 9228/80, Dec. 16.12.82, D.R. 30 p. 132 and No. 12090/86, Dec. 4.7.89, unpublished). Compulsion to provide information as to a journalist's sources must in particular constitute a restriction in the capacity of a journalist freely to receive and impart information without interference by a public authority.   E.     Article 10 para. 2 (Art. 10-2) of the Convention   49.    Consequently, it must be determined whether the restriction was justified under Article 10 para. 2 (Art. 10-2) of the Convention in particular, whether it is "prescribed by law", pursues one or more of the aims enumerated and is "necessary in a democratic society" for that or those aims.   i.     "prescribed by law"   50.    This expression has been interpreted by the Court, firstly, as requiring that the interference must have some basis in domestic law and secondly, as referring to the quality of the law (see eg. Eur. Court H.R., Kruslin and Huvig judgments   of 24 April 1990, Series A no. 176-A, p. 20, paras. 26-27 and no. 176-B, p. 52, paras. 54-55).   51.    As regards the basis of the restriction in domestic law, the Commission recalls that the disclosure order issued by the High Court was confirmed on appeal by the Court of Appeal and the House of Lords, who were applying the substantive law concerning disclosure in light of the provisions of section 10 of the Contempt of Court Act 1981.   52.    As regards the quality of the law, this requires it to be compatible with the rule of law in providing a measure of protection against arbitrary interferences. In this context, it should be accessible to the person concerned, who must moreover be able to foresee its consequences for him (see eg. Eur. Court H.R., Sunday Times judgment of 26 April 1979, Series A no. 30 p. 31, para. 49 and Malone judgment of 2 August 1984, Series A no. 82, p. 32, para. 67).   53.    The applicant submits that the law permitting such orders is not formulated with sufficient precision to enable the individual to foresee with reasonable certainty when it will be applied.   In particular, he argues that the criterion of the "interests of justice" in section 10 of the 1981 Act is insufficiently certain and renders impossible the task of a journalist in assessing whether or not he can give a source an undertaking not to reveal his identity.   54.    The Government argue that the substantive law set out in the Norwich Pharmacal case (see para. 37) and the terms of section 10 of the 1981 Act were clear and enabled the applicant to foresee, to a reasonable degree, the consequences which the receipt of information from his source and his use of that information might entail.   55.    The Commission recalls that in the Sunday Times case, the Court stated:         "In the Court's opinion, the following are two of the       requirements that flow from the expression 'prescribed by       law'. Firstly, the law must be adequately accessible: the       citizen must be able to have an indication that is adequate       in the circumstances of the legal rules applicable to a       given case. Secondly, a norm cannot be regarded as a 'law',       unless it is formulated with sufficient precision to enable       the citizen to regulate his conduct: he must be able - if       need be with appropriate advice - to foresee, to a degree       that is reasonable in the circumstances, the consequences       which a given action may entail. Those consequences need       not be foreseeable with absolute certainty: experience       shows this to be unattainable. Again, whilst certainty is       highly desirable, it may bring in its train excessive       rigidity and the law must be able to keep pace with       changing circumstances. Accordingly, many laws are       inevitably couched in terms which, to a greater or lesser       extent, are vague and whose interpretation and application       are questions of practice."   (Eur. Court H.R., Sunday Times       judgment, loc.cit., p.31 para. 49)   56.    The Commission considers that the judgments in this case reveal that there exists a significant body of case-law concerning the circumstances in which disclosure orders may be made.   The particular privilege afforded to journalists by section 10 of the Contempt of Court Act 1981 is subject to four exceptions which are set out in concise terms without definition. The Commission notes the view of the House of Lords that in each case to which section 10 applies the judge has to engage in a balancing exercise and that it would be foolish to attempt to give a comprehensive definition as to how the balancing exercise should be carried out.   57.    The Commission recalls however that the proceedings brought against the applicant involved one of the first cases which considered the scope of the immunity against disclosure given to journalists under section 10 of the 1981 Act in the context of the exception in "the interests of justice".   Consequently, there may be some doubt as to whether at the time this area of the law had been developed with sufficient precision as to render it reasonably accessible and foreseeable. The Commission finds it unnecessary however to determine this issue given its conclusion below as to the necessity of the restriction.   ii. legitimate aim   58.    As regards the purpose of the restriction, the Commission recalls that the House of Lords gave as its reason for its decision that the necessity in "the interests of justice" for the disclosure of the applicant's notes (which revealed the identity of the source) had been established. The Commission notes that the object of the litigation and of the order of disclosure was the protection of the rights of X Ltd. (who was under threat of severe damage to its business), a legitimate aim under Article 10 para. 2 (Art. 10-2).   iii. "necessary in a democratic society"   59.    The question remains whether the interference was "necessary".   60.    The Court has recently summarised the major principles of its case-law on the "necessity" test in Article 10 (Art. 10) of the Convention as follows:         "(a) Freedom of expression constitutes one of the essential       foundations of a democratic society;   subject to paragraph 2 of       Article 10 (Art. 10-2), it is applicable not only to       'information' or 'ideas' that are favourably received or regarded       as inoffensive or as a matter of indifference, but also to those       that offend, shock or disturb.   Freedom of expression, as       enshrined in Article 10 (Art. 10), is subject to a number of       exceptions which, however, must be narrowly interpreted and the       necessity for any restrictions must be convincingly established.         (b)   These principles are of particular importance as far as the       press is concerned. While it must not overstep the bounds set,       inter alia, in the `interests of national security' or for       `maintaining the authority of the judiciary', it is nevertheless       incumbent on it to impart information and ideas on matters of       public interest. Not only does the press have the task of       imparting such information and ideas: the   public also has a       right to receive them. were it otherwise, the press would be       unable to play its vital role of `public watchdog'.         (c) The adjective 'necessary', within the meaning of Article 10       para. 2 (Art. 10-2), implies the existence of a 'pressing social       need'.   The Contracting States have a certain margin of       appreciation in assessing whether such a need exists, but it goes       hand in hand with a European supervision, embracing both the law       and the decisions applying it, even those given by independent       courts.   The <Convention organs> are therefore empowered to give       the final ruling on whether a 'restriction' is reconcilable with       freedom of expression as protected by Article 10 (Art. 10).         (d)   The <Convention organs'> task, in exercising <their>       supervisory jurisdiction, is not to take the place of the       competent national authorities but rather to review under       Article 10 (Art. 10) the decisions they delivered pursuant to       their power of appreciation.   This does not mean that <their>       supervision is limited to ascertaining whether the respondent       State exercised its discretion reasonably, carefully and in good       faith; what <they have> to do is to look at the interference       complained of in the light of the case as a whole and determine       whether it was 'proportionate to the legitimate aim pursued' and       whether the reasons adduced by the national authorities to       justify it are 'relevant and sufficient'."         (Eur. Court H.R., Sunday Times (No. 2) judgment of       26 November 1991, Series A no. 217, p. 29, para. 50).   61.    The applicant submits that there was no pressing social need for the disclosure order having regard to the fact that interests of X Ltd. were protected from publication in the press by an injunction. He also argues that it was disproportionate given that X Ltd. had taken no other steps to attempt to trace the missing plan and that they were motivated rather to find and punish the source than to safeguard their business from potential damage.   62.    The applicant emphasises that it is of paramount importance that journalists continue to receive from their sources information of interest to the public and that an order of disclosure cannot be justified in light of that consideration unless there is a real threat to national security, it is necessary to prevent a serious crime or concerns information which might lead to the acquittal of an innocent person. The restriction was also disproportionate to the aim since it included the threat of up to 2 years' imprisonment for contempt of court.   63.    The Government contend that an injunction was not sufficient to protect X Ltd. since the courts had found that the source was either malicious or grossly irresponsible, that the plan had been stolen and preventing publication by the media would not prevent disclosure to customers or to competitors. Further they point out that the courts gave full weight to the interests of the media, for example, Mr. Justice Hoffmann attempted to find a compromise which would have allowed the applicant to maintain the confidentiality of the source by co-operating in passing on to the source the court order requiring him to deliver up the copy of the Corporate Plan. They submit that the interest of protecting journalistic sources cannot always outweigh all other interests. Since the domestic courts gave full and reasoned consideration to the competing interests at stake, their decision that disclosure was necessary in the circumstances of the case falls within the State's margin of appreciation.   64.    The Commission considers that protection of the sources from which journalists derive information is an essential means of enabling the press to perform its important function of "public watchdog" in a democratic society. If journalists could be compelled to reveal their sources, this would make it much more difficult for them to obtain information and as a consequence, to inform the public about matters of public interest. The right to freedom of expression, as protected by Article 10 (Art. 10) of the Convention, which includes the right to receive and impart information, therefore requires that any such compulsion must be limited to exceptional circumstances where vital public or individual interests are at stake. The question is therefore whether such exceptional circumstances existed in the present case.   65.    The Commission recalls that X Ltd. sought disclosure of the identity of the source on the ground that it wished to prevent damage to its interests by any further publication of its contents. The House of Lords referred to the risk in dramatic terms, finding that the importance to the company of obtaining disclosure lay in the threat of severe damage to their business, and consequentially to the livelihood of their employees.   66.    The Commission notes that an injunction was in effect restraining the publishers of "The Engineer", the applicant and his employers from publishing any information derived from the Corporate Plan and that all national newspapers and relevant journals were informed of the injunction. It would then have been a contempt of court for any of these to have published that information and none has done so. The risk was that the source might have conveyed the information to customers or to competitors of X Ltd. There is no evidence that this occurred.   67.    The Commission does not find that the allegation that the company risked being wound up, with loss of livelihood to 400 employees, if there was any further leak of information was substantiated before the domestic courts. The Commission is not convinced that the giving of information as to possible losses and the intention of the company to seek further financing would have entailed the dire consequences predicted with regard to confidence of customers, suppliers and financing partners. In this context, the Commission notes that despite the continuing anonymity of the source X Ltd. has apparently suffered none of the harm adverted to in the proceedings in the domestic courts.   68.    The Commission considers that the information which the applicant intended to publish is a type commonly found in the business press. While it may have derived from a possible breach of confidence (no theft of the document was reported or proved), it would not be an exaggeration to assume that much of the information provided by the press must be of similar origin.   69.    In these circumstances, the Commission cannot find that there existed any exceptional circumstances which would have justified a departure to be made from the fundamental principle that the sources of the press should be protected from disclosure. Consequently, the restrictions which the disclosure order imposed on the applicant cannot reasonably be considered to have been "necessary in a democratic society".   CONCLUSION   70.    The Commission concludes, by 11 votes to 6, that there has been a violation of Article 10 (Art. 10) of the Convention.   Secretary to the Commission       President of the Commission         (H.C. KRÜGER)                     (C.A. NØRGAARD)                                                             Or. English               DISSENTING OPINION OF MR. S. TRECHSEL JOINED BY     MM. C. A. NØRGAARD, F. ERMACORA, G. JÖRUNDSSON, H. G. SCHERMERS                             AND J.-C. GEUS         Contrary to the majority,   I have come to the conclusion that the facts of the present case do not disclose a violation of Article 10 of the Convention.         I agree that there has been an interference with the applicant's rights under Article 10.   This means that I agree with the basic principle that a journalist has a legitimate interest in protecting his sources of information.         However, this legitimate interest may enter into conflict with other legitimate interests such as the protection of private life, economic well-being, national security etc.   In my view the majority of the Commission has given too much weight to the interest of a journalist in protecting his sources as an element of freedom of expression.   I am of the opinion, having regard to the duties and responsibilities referred to in Article 10, that the protection of a journalist's sources is only justified in cases where the disclosure of confidential information clearly serves a public interest.   In cases where, for example, an abuse of office, corruption or any other perversion of private or public power is in issue, the journalist should not be compelled to disclose his sources.         In the present case the information concerned a corporation which employed approximately 400 persons and was engaged in a delicate financial operation designed to avert its economic collapse. Disclosure of these plans was likely to frustrate the efforts to save X