Protection of sources now has courts' imprimatur


OPINION:Recent decisions in the ‘ Irish Times’/Mahon tribunal case are very much at odds with older authorities on journalistic privilege against disclosure, writes DAMIAN BYRNE

ALTHOUGH PROTECTION of sources is a bedrock of journalistic ethics, Irish law has not traditionally extended special protection, or privilege, to the confidentiality of sources.

However, the enactment of the European Convention on Human Rights Act 2003, which requires that Irish law be interpreted by the courts in a manner compatible with the State’s obligations under the convention, and the principles affirmed in the case law of the European Court of Human Rights, has led to a shift in the Irish position towards greater protection of confidentiality.

In an early 1970s case called Re Kevin O’Kelly, a journalist who refused to reveal the name of a man he had interviewed was found to be in contempt of court and sentenced to three months’ jail. On appeal against sentence, Mr Justice Walsh rejected the concept of privilege against disclosure: “Journalists and reporters are not any more constitutionally or legally immune than other citizens from disclosing information received in confidence. The fact that a communication was made under terms of express confidence or implied confidence does not create a privilege against disclosure. So far as the administration of justice is concerned the public has a right to every man’s evidence except for those persons protected by a constitutional or other established and recognised privilege.”

Essentially, this has remained the Irish position until recently.

The European Court of Human Rights, on the other hand, has demonstrated a reluctance to interfere with the right of journalists to maintain the confidentiality of sources. It has taken the view that article 10 of the convention, which protects freedom of expression, tilts the balance in a democratic society in favour of securing a free press.

In cases such as Goodwin v United Kingdom, the court has emphasised the importance of freedom of expression as an essential foundation of a democratic society; that protection of journalistic sources is one of the basic conditions for press freedom; and that, given the potentially chilling effect an order of source disclosure has on the exercise of that freedom, such a measure cannot be compatible with article 10 unless it is justified by an “overriding requirement in the public interest”.

The right of a journalist to protect the  confidentiality of sources has now received the imprimatur of the Irish courts in the case of Mahon v Keena and Kennedy. This case concerned correspondence received, unsolicited and anonymously, by the first-named defendant, a journalist with The Irish Times. The correspondence included letters from the Mahon tribunal to David McKenna seeking information in relation to certain payments made to then taoiseach Bertie Ahern. The tribunal sought an order from the High Court compelling the defendants to tell the tribunal the source and whereabouts of the documents.

The court was influenced by the fact that the communication in issue was anonymous and that, as the journalist could not identify his source in any case, little weight should therefore attach to the defendants’ privilege against disclosure of sources. In the circumstances, the court concluded that the defendants’ privilege against disclosure of sources was “overwhelmingly outweighed by the pressing social need to preserve public confidence in the tribunal”.

However, the court, having surveyed a number of key decisions of the European court on the scope of the right to freedom of expression, strongly endorsed the general right of journalists not to reveal sources.

It stated: “Throughout all of these cases . . . great emphasis is laid upon the importance of the right to freedom of expression in a democratic society. Going hand in hand with this, is the critical importance of a free press as an essential organ in a democratic society. An essential feature of the operation of a free press is the availability of sources . . . Without sources of information journalists will not be unable to keep society informed on matters which are or should be of public interest. Thus there is a very great public interest in the cultivation and protection of journalistic sources . . . as an essential feature of a free and effective press.”

On appeal to the Supreme Court, Mr Justice Nial Fennelly held similarly on the broader issue that: “According to the reasoning of the European Court in Goodwin, an order compelling the appellants to answer questions for the purpose of identifying their source could only be ‘justified by an overriding requirement in the public interest’.”

The judgments of the High Court and Supreme Court in Mahon v Keena and Kennedy are very much at odds with older Irish authorities such as Re Kevin O’Kelly. An important caveat is that the right of non-disclosure does not seem to have been challenged or contested in this case, and Re Kevin O’Kelly was not considered. The O’Kelly ruling can probably no longer be regarded as good law in light of the enactment of the 2003 Act. There is still no question of journalists enjoying an absolute privilege against disclosure. They will still be compelled to reveal sources by a court if disclosure is deemed justified “by an overriding requirement in the public interest”.

Damian Byrne is a practising barrister. This is an edited version of an article from the December 2009 issue of the Bar Review