Limited disclosure of journalists' notes ordered
Walsh -v- The News Group Newspaper Ltd
Neutral citation 2012 IEHC 353
Judgment was given by Mr Justice Iarfhlaith O’Neill on August 10th, 2012.
In a libel action being pursued by Louis Walsh against the publishers of the Sun newspaper, the court ordered the discovery of documents relating to sexual assault allegations against Mr Walsh, subsequently admitted to be false, but not documents which might lead to the identification of unidentified sources.
Mr Walsh was suing the Sun for damages arising out of an article published in June 2012 entitled “Louis probed over sex attack on man in loo”. The claims were made by Leonard Watters, who was later prosecuted for making false allegations. It was accepted by the defendants that the allegations were false.
The plaintiff alleged that a journalist with the Sun, Joanna McElgunn, met Mr Watters in a hotel, bought him dinner and offered him a sum of money if he agreed to make a complaint to the Garda Síochána about being assaulted by Mr Walsh in a nightclub toilet.
Mr Watters subsequently made the complaint. The plaintiff also alleged that she gave him €700 and booked him into a Dublin hotel and that the newspaper had represented to him that the story came to it via Garda sources, rather than from Mr Watters.
The defendants claimed that at the time of the publication of the article, it was a fair and reasonable account of the fact that a complaint was being investigated. They had contacted Mr Walsh before publication and published his denial of the allegation.
They relied on qualified privilege in relation to the documents sought, which included all documents referring to the investigation into Mr Watters’s allegations; to any payment made to him by the newspaper; to expenses claimed by Joanna McElgunn for a six-month period following the allegation; to the booking of a hotel room for Mr Watters in June 2011; documents relating to cash withdrawals from bank accounts controlled by the newspaper or Ms McElgunn; records of text messages or emails between her and Mr Watters between June 14th and June 23rd, when the complaint was made; documents relating to contact with members of the Garda Síochána during the same period relating to the article; and documents in the possession of other Sun journalists relating to the publication of the article.
The newspaper said the application was seeking to pierce journalistic privilege. The documents would disclose details of the confidential discussions held in relation to the article and encompassed confidential information in relation to other articles in ongoing investigations.
The judge said journalistic privilege had been firmly established in our legal jurisprudence, with the European Convention on Human Rights jurisprudence having been outlined in the Supreme Court by Mr Justice Nial Fennelly in the Mahon-v-Keena case.
“Ordinarily, information supplied will be published; thus, per se, it could not be said that the content of the information enjoyed privilege from disclosure. If, however, the content of the information which . . . was not published, could lead to the identification of the source, then it would seem to me that it too must enjoy the privilege from disclosure as otherwise the overall purpose of the privilege would fail,” he said.
“It could hardly be contended that the offering of financial inducements to members of the public to obtain information should benefit from the same privileged protection.”
He was led to conclude that journalistic privilege did not apply to communications between Mr Watters and the defendants’ journalists.
Mr Watters had been identified and no journalistic privilege was attached to him. The only basis for privilege relating to communications between Mr Watters and the paper would be if it were shown that a disclosure of the content could lead to the disclosure of another source.
Discovery of documents relating to communications between the defendants and the Garda would be relevant to the resolution of the issue as to whether the story originated with the Garda.
It was a criminal offence to reveal information that would discourage a person from giving evidence and journalistic privilege could not be availed of to shelter it. Therefore he said the plaintiff was entitled to all the documents sought apart from those that might lead to the identification of other sources.
If the defendants were concerned about any of the documents, the court would inspect them to ascertain whether journalistic privilege attached to them.
The full judgment is available on courts.ie
Lawyers: Johnsons for Mr Walsh; MOPS for the Sun