Norwich Pharmacal proceedings to reveal source of leak of confidential information to Interbrew – European Court of Human Rights decision in favour of FT & others

December 16, 2009

The Guardian, Times, Reuters Group and others secured a ruling in Strasbourg that they need not comply with UK court orders requiring them to reveal the source behind a leaked copy of a confidential Interbrew presentation.  The anonymous source had leaked the document to various media organizations which subsequently published articles about the content of the document. Interbrew’s Norwich Pharmacal proceedings against the media organisations to help them identify the anonymous source had been successful in the High Court and Court of Appeal.  These courts had considered that the interference with Article 10 (that is, the right to freedom of expression) was justified, particularly because the source’s purpose had been “maleficent” and “calculated to do harm”.  However, the European Court of Human Rights ruled that the requirement to reveal the journalistic sources interfered with press freedom.  Consequently the organisations do not now need to deliver up the documents to enable Interbrew to identify the source of the leaks.

So the European Court did not think Interbrew’s interest in identifying and bringing proceedings against the source of the leaks so as to prevent further dissemination of its confidential information was an overriding reason in the public interest to justify ordering disclosure of sources.  In reaching its decision the court said that The conduct or purpose of the source, however mala fide, can never be decisive but will merely operate as one of many important factors to be taken into consideration.

This is an important decision.  It remains to be seen what this augurs for brand protection on the internet given that it will often be necessary to use Norwich Pharmacal orders to identify the source behind comments or reports.