Freedom of expression and disclosure of sources: Ashworth Hospital v MGN Ltd

The tension between the right of the media freely to report matters of public interest and the need to protect other legitimate rights has given rise to another difficult balancing exercise for the House of Lords.

Article 10 of the European Convention for the Protection of Human Rights creates a strong, but not absolute, obligation on the courts of convention countries to uphold the right of freedom of expression.  The exceptions to that principle are those which are deemed to be “necessary in a democratic society”.   Section 10 of the Contempt of Court Act 1981 protects the media from being liable in contempt if they do not reveal their sources.  The extent to which the media can protect its sources clearly impacts on the media’s ability to enjoy the freedom of expression established for it by Article 10.  The House of Lords has now given further guidelines as to when the courts will deem it necessary to qualify these Article 10 and Section 10 rights.

Ashworth Hospital brought a case against MGN Ltd seeking disclosure of the identity of the individual who provided confidential medical information on Ian Brady (the moors murderer) from a source at the hospital.  The House of Lords was asked to address five issues arising in the proceedings:

  1. Did the placing of information in the public domain by Brady himself destroy its confidentiality?
  2. If it was in the public domain, was it therefore not lawful for MGN to publish it?
  3. Does the “interests of justice” exception to Section 10 of the Contempt of Court Act 1981 (protecting media sources unless disclosure is required in the interests of justice) only apply where disclosure is required for existing or intended proceedings?
  4. Was the hospital’s purpose in seeking this information a legitimate aim within Article 10(2) of the Convention, and therefore necessary in a democratic society?
  5. Does the court’s power to order discovery against a third party extend to cases where the claimant has neither brought nor intends to bring proceedings?

The House of Lords decided as follows:

  1. If Brady had put similar information in the public domain, he might have had no legal redress against MGN.  However, the hospital had an independent interest in retaining the confidentiality of its medical records.   The law lords also confirmed that this jurisdiction required only that there should be wrong doing on the part of the person whose identity the claimant was seeking, and not on the part of the defendants to the proceedings.
  2. Since the source must have been one of the hospital staff, the source had to be in breach of his or her contract of employment in disclosing the information to an intermediary, and was therefore a wrong doer.  It was irrelevant whether or not MGN itself was also guilty of wrong doing.
  3. This jurisdiction was not limited to cases where the victim of the wrong-doing intended to pursue a civil remedy against the wrong doer.
  4. The care of patients at the hospital, which was difficult in ordinary circumstances, was made considerably more difficult by the disclosure of hospital records.  In order to deter similar disclosures in the future it was essential that the source should be identified and disciplined.
  5. The court considered that these exceptional circumstances justified the disclosure of the source.

The House of Lords has made a clear policy decision because of the evidence that the very fact of such a disclosure from the hospital records was likely seriously hamper the hospital’s ability to fulfil its duties if this particular source went unpunished.  It also recognised the need to deter any future sale of confidential information by members of the hospital staff to tabloid newspapers.  In doing so it decided that the value to society of a free press, for which maintaining the confidentiality of sources is vital, must in this instance come second to the needs of a hospital where some of the most vulnerable and dangerous members of society are kept in secure conditions.

Bulletins are for general guidance only. Legal advice should be sought before taking action in relation to specific matters. Where reference is made to Court decisions facts referred to are those reported as found by the Court. Please note that past bulletins included in the Archive have not been updated by any subsequent changes in statute or case law.