Courts must 'take due account' of rights rulings


THE IRISH courts must take due account of the decisions of the European Court of Human Rights (ECHR) but these are not binding precedents, according to the judgment.

ECHR decisions are relevant to the outcome of the case involving the Mahon tribunal and The Irish Timesbecause of the effect given to the European Convention on Human Rights in Irish law, Mr Justice Nial Fennelly said in his judgment.

The tribunal undoubtedly came within the definition of an “organ of State” required by law to perform its functions in a manner compatible with the State’s obligations under the convention, he said.

Legislation governing tribunals must therefore be interpreted in a manner compatible with these obligations and the Supreme Court must take judicial notice of the provisions of the convention and of decisions of the ECHR.

“The court must, as the concluding words of the provision make clear, ‘take due account’ of the principles laid down in those judgments. This is not the same as saying that they constitute binding precedents.”

Mr Justice Fennelly said it was important to recall that, in the event of a conflict between the provisions of the convention and the Constitution, the Constitution must prevail. The ECHR had been “at pains” to emphasise that the right to freedom of expression was not unlimited and had stated that the press must not “overstep certain bounds”.

Nonetheless, the courts constantly emphasised the value of a free press as one of the essential foundations of a democratic society, that the press generated and promoted political debate, informed the public in time of elections and scrutinised the behaviour of governments and public officials. For these reasons, the court held, persons in public life must expect to be subjected to disclosure about their financial and other affairs, to criticism and to less favourable treatment than those in private life.

“Generally, therefore, restrictions on freedom of expression must be justified by an ‘overriding requirement in the public interest’,” the judgment continued.

He cited the case of Fressoz and Roire, in which the publisher of Le Canard Enchainéand a journalist were fined after publishing anonymous information about Peugeot. The ECHR found there wasn’t any proportional relationship between the legitimate aim of journalists and the means deployed to achieve that aim, given the interest of society in preserving freedom of the press.

In Goodwin v United Kingdom, the House of Lords fined a journalist for contempt of court after he refused to disclose a source. However, the ECHR ruled that protection of sources was one of the basic conditions for press freedom, and said an order for disclosure of sources could not be compatible with the convention, unless justified by “an overriding requirement in the public interest”.

Mr Justice Fennelly said it wasn’t surprising that there was a large body of law concerning journalistic privilege in the US. Many states, including California, have law protecting this privilege, but there was no federal legislative protection of journalists’ sources.