European court rules against ‘Irish Times’ on Mahon tribunal case costs

European Court of Human Rights decision a majority rather than a unanimous one

The Irish Times has lost its case at the European Court of Human Rights over a decision to make the newspaper pay the costs of its successful legal battle with the Mahon tribunal over journalists' sources.

In 2009, the Supreme Court unanimously upheld an appeal by then Irish Times editor Geraldine Kennedy and public affairs correspondent Colm Keena against a High Court ruling that they should reveal their sources.

The case followed the publication of a story in 2006 which revealed that the Mahon planning tribunal was investigating a number of payments to then taoiseach Bertie Ahern.

The Supreme Court unanimously upheld an appeal by The Irish Times but ruled that there were "exceptional circumstances" in the case – the journalists' destruction of documents related to the source – which justified a departure from the normal rule that costs go to the winning side. It directed the paper to pay all costs of the court proceedings, including the costs of the tribunal.

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In its application to the European court, The Irish Times argued that the decision on costs interfered with the journalists' right to protect their sources.

The newspaper claimed there was a strong chilling effect to the Supreme Court’s decision, since it was clear to the press, to potential sources and to the public that journalists could be compelled, under the threat of an order of costs, to disclose the source of information given in confidence. It said this was all the more unacceptable in light of the highly political subject matter of the case, which warranted the highest protection.

In a majority decision, the Strasbourg court rejected the paper’s application and found the claim of interference with freedom of expression to be “manifestly ill-founded”.

“The convention does not confer on individuals the right to take upon themselves a role properly reserved to the courts,” the court stated. “As the domestic courts underscored, this is, effectively, what the applicants did through their deliberate destruction of the very documents that were at the core of the tribunal’s inquiry.” The court said the costs ruling could have “no impact on public interest journalists who vehemently protect their sources yet recognise and respect the rule of law”.

Ms Kennedy said she was disappointed with the court’s decision and noted it was a majority rather than a unanimous one.

“I have no regrets that the steps that I took to publish Colm Keena’s story about the payment of monies to former taoiseach Bertie Ahern, while he was minister for finance, were necessary to protect journalistic sources. The story was manifestly in the public interest.”

She added: “I make no apology for doing my public duty at the time. Notwithstanding the ECHR decision, the case enshrines the journalistic right to protect sources in the Constitution for the first time.”

Ruadhán Mac Cormaic

Ruadhán Mac Cormaic

Ruadhán Mac Cormaic is an Assistant Editor of The Irish Times