AJR  Columns
From AJR,   July/August 2000

Wisdom from Across the Pond   

American judges could learn from the British when it comes to cases involving confidential sources.

By Jane Kirtley
Jane Kirtley (kirtl001@tc.umn.edu) is the Silha Professor of Media Ethics and Law at the University of Minnesota's School of Journalism and Mass Communications.     

CONVENTIONAL WISDOM HAS it that the British can't teach their American offspring much about press freedoms. U.S.-owned publications, including the New York Times and the International Herald Tribune, frequently lose libel suits filed against them in London because English courts flatly reject constitutional protections such as the "actual malice" standard for speech criticizing public figures.
With all that bad precedent on the other side of the pond, it was refreshing in April to see a decision favoring the press from the British Court of Appeal--especially because the outcome might have been quite different here in the United States.
Reporting techniques in Britain can be a little unconventional. It's not uncommon for even respectable broadsheet newspapers to be offered materials that have been plucked from dustbins--garbage cans, to us--by entrepreneurial individuals in pursuit of a quick pound.
And that's apparently what happened earlier this year, when pop star Elton John became embroiled in a lawsuit with the accounting firm PricewaterhouseCoopers. A question emerged about whether a firm of solicitors had a conflict of interest that would prevent it from representing John. Two barristers were retained to render an opinion. A draft of their advice was apparently deposited into a wastepaper bin but somehow found its way into the hands of Rachel Baird, a reporter for Express Newspapers.
When Baird telephoned a partner at the solicitors' firm to interview him, he was dismayed. As the Court of Appeal opinion puts it with classic British understatement, "The Chambers were naturally concerned about the breach of security which had occurred." Not so concerned that they bothered to look for the leak within their own shop, but sufficiently upset to seek an injunction to gag the Express from publishing the contents of the document.
Further hearings followed, and on March 3, Baird was ordered by a Queen's Bench judge to identify her source. Although Justice Michael Morland gave lip service to the importance of investigative journalism, he concluded that, in this case, other interests had to prevail--specifically, the interest in protecting attorney-client confidentiality. "Clearly, if there are persons who search for and select confidential information...and hawk it around for passage to the media, the achievement of justice will be endangered," he wrote.
The Express appealed, and in mid-April, a three-judge panel reversed the judge's decision. As a general rule, courts have authority to compel those who know the identity of wrongdoers to identify them to the persons who were harmed. But when journalists are involved, the panel said, parties seeking identifying information must explore other avenues to "find the culprit" themselves before asking reporters to break "a most important professional obligation to protect a source."
The justices noted that the attorneys failed to make any attempt to trace the thief. Moreover, there was no guarantee that ordering the reporter to reveal the source would be any more fruitful than an internal inquiry.
Perhaps the most extraordinary aspect of the ruling, however, was the panel's observation that if the trial court's decision was allowed to stand, it could be interpreted as "an example of lawyers attaching a disproportionate significance to the danger to their professional privilege while undervaluing the interests of journalists and thus the public."
Contrast this ruling with the federal court rulings in U.S. vs. Noriega in 1990, enjoining CNN from broadcasting tapes of telephone calls between Manuel Noriega and his attorneys. Or with the 1998 decision of the South Carolina Supreme Court in State vs. Quattlebaum. It upheld an injunction prohibiting two media organizations from disseminating the contents of a videotaped conversation between a criminal defendant and his lawyer.
Although these cases did not involve subpoenas to compel journalists to reveal their sources, they illustrate that U.S. courts--including the Supreme Court, which declined to review either case--are willing to impose a prior restraint, presumed unconstitutional in almost every instance, in the name of protecting attorney-client privileges.
Forcing a reporter to reveal a source increasingly seems to be, for many American judges, a minor matter, as the many recent cases holding journalists in contempt will attest.
But in the United Kingdom, at any rate, the reporter's privilege seems to be more than just a candle in the wind.