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FINANCIAL TIMES LTD V UNITED KINGDOM [2010] E.M.L.R. 21 533 FINANCIAL TIMES LTD v UNITED KINGDOM European Court of Human Rights (Fourth Section) Application 821/03 Judges Lech Garlicki (President), Nicholas Bratza, Giovanni Bonello, Ljiljana Mijović, David Thór Björgvinsson, Ledi Bianku, Mihai Poalelungi: November 24, 20091 [2010] E.M.L.R. 21 Disclosure orders; Financial journalism; Freedom of expression; Press; Sources of information H1 European Convention on Human Rights arts 6, 8, 10—disclosure of journalistic source—right to freedom of expression—need for flexibility in applying rule requiring exhaustion of domestic remedies—importance of protection of journalistic sources for the maintenance of a free and effective press—relevance of the conduct or motive of the source—relevance of steps taken by journalists to verify accuracy of information—no order to be made if less invasive alternative available. H2 The applicants were the Financial Times Ltd, Independent News & Media Ltd, Guardian Newspapers Ltd, Times Newspapers Ltd and Reuters Group Plc. H3 On October 30, 2001 the board of Interbrew SA, a Belgian brewing group, instructed its investment bankers, Goldman Sachs and Lazard, to carry out work on the possibility of a future acquisition by Interbrew of South African Breweries plc (“SAB”). Goldman Sachs produced a document which was confidential and contained data likely to affect the share prices of Interbrew and of SAB. The document formed the basis of a presentation to Interbrew’s internal mergers and acquisitions department on November 20, 2001. About a week later, copies of a document (“the leaked document”) were sent to each of the applicants (apart from the Independent) by an unknown source. Interbrew alleged that the leaked document was similar or identical to the document which formed the basis of the presentation, except for the substitution of a different offer price for SAB shares, and the insertion of a timetable for the making of an offer. H4 A journalist at the Financial Times received a copy of the leaked document on November 27. He informed Goldman Sachs, who informed Interbrew, that he intended to publish it. The CEO of Interbrew telephoned him on the record and informed him that Interbrew had indeed carried out research into SAB but that it was not in an advanced stage of preparing an offer. The Financial Times published an article about the planned offer on its website that night and in hard copy the following morning. A copy of the leaked document was also received by The Times 1 Paragraph numbers in this judgment are as assigned by the court [2010] E.M.L.R., Part 5 © 2010 Thomson Reuters (Legal) Limited 534 Financial Times Ltd v United Kingdom on November 27, and it published an article about the planned offer in hard copy the following day. Reuters reported the Financial Times’ story on its wire service in the early hours of November 28, received a copy of the leaked document later that day and shortly afterwards published a further article referring to its receipt of the document. The Guardian received a copy of the leaked document on November 28, and published an article about it the following day. The Independent did not receive a copy of the leaked document, but took steps to obtain a copy from a source that it knew but undertook not to identify. It published two articles about the leaked document on November 29. H5 Interbrew issued a press release on November 28, 2001 in response to a request by the Takeover Panel to make a statement. In that press release it confirmed that it had undertaken a preliminary analysis of SAB as part of a routine annual review of leading world brewers. It stated that the analysis was at a very early stage and might or might not lead to a future offer. On November 29, it issued a further press release, alleging that the leaked document contained fabrications. The impact of the press coverage of the story on the market in shares in Interbrew and SAB was significant. H6 On November 30, 2001, Interbrew instructed Kroll, the security and risk consultants, to assist in identifying the source of the leaked document. Kroll advised that access to the copies of the leaked document might assist their investigation. H7 On December 10, 2001, Interbrew commenced proceedings against the applicants in the High Court for (inter alia) delivery up of the copies of the leaked document and an order for disclosure of the name and address of any source who had provided them with copies of, or discussed with them the subject matter of, the leaked document. Without notice to the applicants it also applied to the High Court for, and was granted, an injunction restraining the applicants from (inter alia) altering, defacing or disposing of copies of the leaked document, and ordering them to deliver up within 24 hours copies of the leaked document and of any documents containing or evidencing discussions with any source, and within 48 hours to serve a list (verified by witness statement) of all such documents within their control. On December 11, Interbrew returned to court seeking a different order, namely that the applicants should within 48 hours serve witness statements setting out the names and addresses of every person who had provided them with copies of the leaked document and with whom they had discussed the subject matter of the leaked document, and, if these identities were not known, the circumstances in which they received the documents. H8 An expedited inter partes hearing of Interbrew’s application took place on December 14 and 17, 2001 before Lightman J. On December 19, 2001, the judge ordered delivery up of the documents sought within 24 hours. He held that the source had deliberately mixed false information with confidential information to create a false market in the shares of Interbrew and SAB. Interbrew had a substantial private interest in preventing repetition, but there was also a substantial public interest in identifying the source in order to protect the integrity of the share market. The evidence showed that the information sought was needed by Interbrew if progress was to be made in identifying the source. There was thus an overriding need for the disclosure sought, in the interests of justice and the prevention of crime. H9 On December 20, the applicants were granted leave to appeal by the Court of Appeal. By judgment dated March 8, 2002, the Court of Appeal dismissed the [2010] E.M.L.R., Part 5 © 2010 Thomson Reuters (Legal) Limited [2010] E.M.L.R. 21 535 applicants’ appeal (Interbrew SA v Financial Times Ltd [2002] EWCA Civ 274, [2002] E.M.L.R. 24). The Court of Appeal held that Interbrew’s entitlement to delivery up of the documents was established because delivery up might help them to ascertain the identity of the proper defendant to an action in breach of confidence relating to certain parts of the leaked document. It was not possible to say whether the source had introduced false information or had assembled his material using authentic documents, and in consequence Interbrew’s prima facie entitlement to delivery up depended not on crimes of forgery or market manipulation but on a relatively modest leak of confidential information. However, that did not diminish the prospective seriousness of a repetition, especially given what was found to have been the evidently maleficent purpose of the source, so that the public interest in protecting the source of such a leak was not sufficient to withstand the countervailing public interest in enabling Interbrew to seek justice against the source through the courts. H10 On July 9, 2002 the House of Lords refused the applicants leave to appeal. H11 On December 20, 2002, the applicants applied to the European Court of Human Rights, complaining that the decision of the High Court on December 19, 2001 violated their rights under arts 10, 8 and 6 of the European Convention on the Protection of Human Rights and Fundamental Freedoms. On October 18, 2005, the Court decided to give notice of the application to HM Government, and to examine the merits of the application at the same time as its admissibility. H12 On the question of admissibility, HM Government argued that the applicants had not made any formal applications for disclosure of documents, cross-examination or production of information, and had not requested a full trial of Interbrew’s claim for delivery up of the leaked document. It was said to follow that they had failed to raise the substance of their complaint in the domestic proceedings. The applicants argued that they were faced with very urgent proceedings, such that any applications (for example, for a full trial of Interbrew’s claim, and for further information) had to be made orally and not by formal application. They had argued that no findings of fact should be made on one-sided evidence in an interim application, and Interbrew’s evidence had been hearsay, such that any application to cross-examine the witnesses would have been pointless because it would not have been directed at those who could give first hand evidence. H13 On the substantive application, the applicants argued in particular that it was wrong in principle to make an order which would certainly interfere with freedom of expression (by exposing their sources to the risk of identification) and to do so in circumstances in which there was no satisfactory evidence that Interbrew had exhausted all other avenues to obtain the evidence required. They further contended that the English courts should not have treated the source’s purposes as being either relevant or justiciable, and that they did not enjoy equality of arms because the court had made findings of fact on which it relied in carrying out the balancing test required by art.10(2), without the evidence having been properly tested.
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