Media law

By Amber Melville-Brown, Schillings, London

Watchdog of society

Ashworth Security Hospital v MGN Limited [2001] 1 WLR 515

The UK press has been described as 'the watchdog of society' given the vital role it plays in researching and publishing matters of public interest to society at large.

It maintains that an essential tool in carrying out this role is an ability to protect sources, guaranteeing them confidentiality and anonymity, and thereby allowing them to speak freely without fear of repercussions.

However, the decision of the House of Lords in the Ashworth case, upholding the decisions of both Mr Justice Rougier in April 2000 and the Court of Appeal in December 2000, has shown that protection of sources is not an immutable right.

In December 1999, the Daily Mirror published an article, written by its investigations editor, Gary Jones, which included verbatim extracts from the medical records of the Moors murderer Ian Brady, a patient at Ashworth Security Hospital, which treats those with dangerous, violent or criminal propensities.

Much publicity surrounded Brady at the time of the article: he was involved in a widely publicised hunger strike; his solicitor made statements on his behalf regarding his treatment at Ashworth; Ashworth put out press releases in response; the judgment in Brady's judicial review of the hospital's decision to force feed him, including details of his clinical history, was given in open court.

Notwithstanding the amount of information in the public domain, the hospital argued that it had a legitimate right to seek to preserve the confidentiality of its medical records.

That these details were almost inevitably from a print-out of Ashworth's computer database of records was of great concern to the hospital.

It wanted to ensure that by dismissing the source, whom it presumed to be an employee with access to the database, it would both remove that particular danger from the hospital and restore patients' confidence in its systems.

As Mr Justice Rougier noted at first instance: 'Once it were known among patients that their records might well be leaked, there would, in all probability, be a sharp downturn in the essential therapeutic patient/doctor relationship where trust is of fundamental importance.'

Identify source

The application was brought against MGN Limited, the publisher of the Daily Mirror.

Gary Jones, under whose by-line the article was published, did not know the identity of the original source who had passed the information to an intermediary, who then passed it to the journalist.

Ashworth's action was to seek to ascertain the identity of the original source.

Mr Justice Rougier ordered the newspaper to explain how it came by the medical records and to identify the parties, including any employees at Ashworth, who were involved in providing these details.

MGN appealed, the Appeal Court dismissed the appeal and MGN appealed to the House of Lords.

Applications of this kind are made under the jurisdiction of what has become known, following the 1974 case of Norwich Pharmacal Co v COMRS, as Norwich Pharmacal disclosure.

This provides that where a party becomes unintentionally involved in the wrongful act of another, that party has a duty to assist the injured party, for example, by providing information or disclosing documents that may assist the claimant in his action against the original tortfeasor.

In Ashworth, the hospital was the injured party.

MGN had become unintentionally involved in the wrongful act of its original source; but it argued that the jurisdiction did not apply and that it did not have to identify the source who had acted in breach of contract and/or confidence, claiming that the information had already been put into the public domain by Brady.

Therefore, MGN argued, the information was no longer confidential and MGN was as a result not in breach of confidence and was not a tortfeasor.

The House of Lords, like the court before it, did not agree.

The Master of the Rolls, in the Appeal Court, found that MGN had almost certainly committed a tort in publishing the material obtained through breach of confidence and/or contract.

Lord Woolf, giving leading judgment in the Lords, explained that such a finding was not necessary for the jurisdiction to apply.

MGN did not need to be the original wrongdoer for disclosure to be ordered.

Lord Woolf said: 'While ...

the exercise of the jurisdiction does require that there should be a wrongdoing, [what] is required is the wrongdoing of the person whose identity the claimant is seeking to establish and not of the person against whom the proceedings are brought...

it is sufficient that the source was a wrongdoer and MGN became involved in the wrongdoing which is incontestably the position.'

As to confidentiality, Lords Slynn and Woolf said: 'The fact that Mr Brady may have initiated or consented to some publication of his medical records cannot possibly deprive the hospital of the protection they patently need.' The hospital retained 'independent interests' in retaining the confiden-tiality of the medical records.

MGN also argued that disclosure was not proportionate to a legitimate aim within article 10 of the European Convention on Human Rights, guaranteeing freedom of expression.

Nor was it strictly necessary in a democratic society.

Lord Woolf accepted that the ability to preserve a source's identity 'makes a significant contribution to the ability of the press to perform their role in society of making information available to the public' and that any disclosure would be likely to have a chilling effect on the freedom of the press.

However, in the present case, their lordships found that seeking to prevent disclosure of medical records by ordering disclosure of the source, was necessary, proportionate and justified.

The care of patients in this 'exceptional' situation was already fraught with difficulty and danger and was exacerbated by disclosure of confidential information in this way.

The 'pressing social need' allowing for the fettering of free speech and the 'legitimate aim' was to maintain and preserve the integrity and confidentiality of patients' notes and records, thus guaranteeing the vital trusting relationship between therapists and patients.

So, the order was granted.

But what has been disclosed by MGN is the identity of its source, the intermediary.

For Ashworth to ascertain the identity of his source, it will have to take similar proceedings against him.

He may argue that he cannot disclose his source on fundamental journalistic principles.

He may be ordered to do so.

He may refuse.

He may be committed for contempt of court.

What is sure is that a battle between the preservation and disclosure of confidential information in general continues to rage.

While the press may bemoan its plight at a perceived ingress on its rights, individuals and organisations may see the press as riding roughshod over their own rights of confidentiality and privacy.