CEDH · PRESS;CHAMBERJUDGMENTS;ENG — 15 décembre 2009

.s800EAC49 { font-size:12pt } .sA678F94A { margin-top:0pt; margin-bottom:0pt; text-align:right; font-size:11pt } .s29100277 { font-family:Arial; font-weight:bold } .s598389F8 { margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:11pt } .s7ED160F0 { text-decoration:none } .s11AD46B1 { font-family:Arial; font-size:7.33pt; vertical-align:super; color:#0069d6 } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sE202B2ED { font-family:Arial; font-size:11pt; font-weight:bold; font-style:italic; text-decoration:underline; color:#0069d6 } .sBB9EE52A { font-family:Arial } .s2E932ED2 { margin-top:0pt; margin-bottom:0pt; font-size:11pt } .sA36B60A1 { font-family:Arial; font-style:italic } .s99A63BFE { margin-top:0pt; margin-bottom:0pt; text-align:left; font-size:11pt } .s4DDA3AA3 { font-family:Arial; font-weight:bold; font-style:italic } .sADADF4A7 { font-family:Arial; text-decoration:underline } .sCB9E0544 { margin-top:0pt; margin-bottom:0pt; text-align:left } .s4BAE41EE { font-family:Arial; font-size:11pt } .sBACB3E60 { font-family:Arial; font-size:11pt; text-decoration:underline; color:#800080 } .sC7EAD8B { font-family:Arial; font-weight:bold; text-decoration:underline } .sF6A12959 { width:33%; height:1px; text-align:left } .s2EB42ED2 { margin-top:0pt; margin-bottom:0pt; font-size:10pt } .s653E6C45 { font-family:Arial; font-size:6.67pt; vertical-align:super; color:#0069d6 } 959 15.12.2009   Press release issued by the Registrar   Chamber judgment [1] FINANCIAL TIMES LTD AND OTHERS v. THE UNITED KINGDOM (application no. 821/03)   BALANCE TIPPED IN FAVOUR OF PROTECTING JOURNALISTIC SOURCES IN LEAKED TAKEOVER BID DOCUMENT CASE   unanimously   Violation of Article 10 (freedom of expression) of the European Convention on Human Rights   (The judgment is available only in English.)   Principal facts   The applicants are four newspapers and a news agency: Financial Times   Ltd; Independent News & Media   Ltd; Guardian Newspapers   Ltd; Times Newspapers Ltd; and, Reuters Group   plc.   The case concerned the applicants’ complaint that they had been ordered to disclose documents to Interbrew, a Belgian brewing company, which could lead to the identification of journalistic sources at the origin of a leak to the press about a takeover bid.   On 27 November 2001 a journalist at The Financial Times (“FT”) received a copy of a leaked document from X. concerning Interbrew’s possible takeover bid for South African Breweries (“SAB”). That day the FT journalist telephoned Goldman Sachs, Interbrew’s investment bank advisers, to advise them that he had received the leaked document and intended to publish it. The article was published at about 10 p.m. on the FT’s website and, referring to the leaked document, stated that Interbrew had been plotting a bid for SAB.   The Times , Reuters , The Guardian and The Independent , also referring to the leaked document and the possible bid, published articles on the same and following days. Following a statement by Interbrew to the press, they continued to report on the issue, adding that the leaked documents had possibly been doctored.   The impact of the press coverage on the market shares of Interbrew and SAB was significant: notably SAB’s shares traded went from less than 2 million to more than 44 million in the space of two days.   Kroll, Interbrew’s security and risk consultants, tried to identify X, without success.   Following Kroll’s advice that access to the originals of the leaked documents might vitally assist the investigation, Interbrew brought proceedings in December 2001 against the applicants in the High Court. That court found in favour of Interbrew and ordered the applicants to disclose the leaked documents. It was found in particular that X. had deliberately leaked a lethal concoction of confidential and false information, with serious consequences for the integrity of the share market and that there was an overriding need for disclosure of the documents in the interests of justice and for the prevention of crime.   That decision was upheld on appeal. It was concluded that the public interest in protecting the source of a leak was not sufficient to withstand the prevailing public interest in allowing Interbrew to seek justice against the source, the critical point being X.’s evident aim “to do harm whether for profit or for spite…”.   In July 2002 the House of Lords refused the applicants leave to appeal. To date, the applicants have not delivered up the documents and the disclosure order has not been enforced against them.   Complaints , procedure and composition of the Court   Relying on Article   10 (freedom of expression) and Article   8 (right to respect for private and family life and correspondence), the applicants complained about the court order to disclose the leaked documents which could lead to the identification of journalistic sources. The applicants also complained about the unfairness of the civil proceedings in which Interbrew had claimed damages against the source of the leaked documents and sought to prevent further leaks, in breach of Article   6   §   1 (right to a fair hearing).   The application was lodged with the European Court of Human Rights on 20 December 2002.   Judgment was given by a Chamber of seven judges, composed as follows:   Lech Garlicki (Poland), President , Nicolas Bratza (the United Kingdom), Giovanni Bonello (Malta), Ljiljana Mijović (Bosnia and Herzegovina), David Thór Björgvinsson (Iceland), Ledi Bianku (Albania), Mihai Poalelungi (Moldova), judges , and also Lawrence Early , Section Registrar .   Decision of the Court   Article 10   The disclosure order against the applicants had constituted an interference with their right to freedom of expression. That interference, authorised by a principle of common law (the Norwich Pharmacal principle whereby if a person through no fault of his own becomes involved in the wrongdoing of others so as to facilitate that wrongdoing, he comes under a duty to assist the person who has been wronged by giving him full information and disclosing the identity of the wrongdoer) and section 10 of the Contempt of Court Act 1981, were “prescribed by law” and pursued the legitimate aims of protecting the rights of others and preventing the disclosure of information received in confidence.   Firstly, the Court considered that X’s alleged harmful intent and the doubts surrounding the authenticity of the leaked document were not important factors in the applicants’ case, as neither factor had been ascertained with the necessary degree of certainty in the legal proceedings against the applicants.   Furthermore, although Interbrew had received prior warning that FT’s article would contain allegedly confidential and sensitive commercial information, it had not sought an injunction to prevent its publication. Moreover, ordering disclosure to prevent further leaks would only be justified in exceptional circumstances where no reasonable and less invasive alternative means were available to discover the source. However, although Kroll had failed to identify X. , it was apparent from the judgments of the domestic courts that Interbrew's evidence had not given full details of the inquiries made. Indeed, the Court of Appeal's conclusion that Kroll had done as much as it could at that time to trace the source had been based on inferences.   Emphasising the chilling effect of journalists being seen to assist in the identification of anonymous sources, the Court found that Interbrew's interests in eliminating, by proceedings against X, the threat of damage through future dissemination of confidential information and in obtaining damages for past breaches of confidence had been insufficient to outweigh the public interest in the protection of journalists' sources. In conclusion, the Court found that there had been a violation of Article 10.   Other Articles   Given the above findings, the Court considered that it was not necessary to examine the applicants’ complaints under Article 6 § 1 and Article 8 separately.   Article 41 (just satisfaction)   Under Article 41 (just satisfaction) of the Convention, the Court awarded the applicants 160,000 euros (EUR) in respect of costs and expenses.     ***   This press release is a document produced by the Registry. It does not bind the Court. The judgments are available on its   website ( http://www.echr.coe.int ).     Press contacts Tracey Turner-Tretz (telephone : 00 33 (0)3 88 41 35 30) Stefano Piedimonte (telephone : 00 33 (0)3 90 21 42 04) Kristina Pencheva-Malinowski (telephone : 00 33 (0)3 88 41 35 70) Céline Menu-Lange (telephone : 00 33 (0)3 90 21 58 77) Frédéric Dolt (telephone : 00 33 (0)3 90 21 53 39) Nina Salomon (telephone: 00 33 (0)3 90 21 49 79)   The European Court of Human Rights was set up in Strasbourg by the Council of Europe Member States in 1959 to deal with alleged violations of the 1950 European Convention on Human Rights.   [1] Under Article 43 of the Convention, within three months from the date of a Chamber judgment, any party to the case may, in exceptional cases, request that the case be referred to the 17 ‑ member Grand Chamber of the Court. In that event, a panel of five judges considers whether the case raises a serious question affecting the interpretation or application of the Convention or its protocols, or a serious issue of general importance, in which case the Grand Chamber will deliver a final judgment. If no such question or issue arises, the panel will reject the request, at which point the judgment becomes final. Otherwise Chamber judgments become final on the expiry of the three-month period or earlier if the parties declare that they do not intend to make a request to refer.