THE failure of the Government to change laws so that journalists can protect confidential sources has been challenged by a Dublin journalist. The case is expected to go to the High Court and could end up being resolved by the European Court of Human Rights.
Mr Barry O'Kelly (32), a journalist with the Star newspaper, faced going to prison for contempt when he refused to reveal his sources of confidential information in a case in which he was a witness. In two weeks, the case will make legal history, since Judge James Carroll adjourned it to allow the Attorney General to appear. It is then expected that the question of journalistic privilege will go to the High Court for hearing.
Yesterday, a media law expert and the author of the main media law textbook, Ms Marie McGonagle, said the decision to take the case to a higher court for clarification was "highly significant". What was also important, she said, was the inclusion in the legal arguments yesterday of a case that was brought to the European Court of Human Rights, Goodwin v UK, which did say a journalist had the right to protect the source of confidential information.
In the Circuit Court yesterday, Mr Kevin Feeney SC, for Mr O'Kelly, argued that the law had evolved since RTE journalist Mr Kevin O'Kelly was imprisoned for refusing to identify a voice on a tape in 1972, and that later decisions had recognised the right to retain confidentiality. If the courts held that had not been the case, then, he argued, Ireland was in breach of Article 10 of the European Convention of Human Rights, which guaranteed press freedom.
It was argued that British law was found to be in breach of the European Convention in the Goodwin case, even though some limited privilege had been given to journalists under a law passed in 1981. Ireland's laws governing contempt of court are more restrictive and have not been updated, and would presumably be in further breach of the convention.
Protection of sources has always been a problematic area. Lawyers, judges and politicians have been loath to extend privilege to journalists, saying that like any other citizen they must answer questions put to them in court.
Journalists say they cannot do so, as they give their word to sources of information that they will remain anonymous.
Journalists around the world adhere to many codes of ethical conduct, but they all have one thing in common, that they are obliged to protect their sources.
The National Union of Journalists, in a submission to the Law Reform Commission, said: "We believe it is part of the constitutional obligation of the State not simply to prevent encroachment on the right of expression but also to ensure that journalists do not face undue legal sanction in their attempts to perform such roles and function.
However, the report from the commission, which appeared in the time between the journalist, Ms Susan O'Keeffe, being charged with contempt of the beef tribunal for refusing to divulge her sources of information and her court appearance, was disappointing. By a majority the commission did not recommend a change in the law and said it would let the law "develop in the courts".
Only two journalists have been imprisoned for refusing to name their sources. In 1933 Mr Joseph Dennigan, the political correspondent of the Irish Press, was sentenced to one month. Mr Kevin O'Kelly was the second, in 1972. Ms O'Keeffe, who was charged with contempt of a tribunal, was acquitted on a technicality.
Some lawyers have argued that the paucity of convictions is proof that changes in the law are not necessary. They claim that barristers would not normally ask a journalist to name their sources as the answer would always be in the negative, so starting a train of events that would rarely help their clients.
However, the number of journalists who find themselves being asked to name their sources has increased. More often than not there is no follow up to the refusal to answer the question as to who gave the journalist the information because cases are settled.
However, questions of media law are becoming more and more urgent. Ms Liz Allen, the crime correspondent of the Sunday Independent, is currently appealing a conviction under the Official Secrets Act. Ms Veronica Guerin was murdered doing her job of investigating crime and Mr Barry O'Kelly is awaiting the outcome of this case. As Mr Feeney said in court, the question of protecting sources is not a theoretical issue. For journalists in general and crime reporters in particular, questions of protecting sources is an issue about being able to do a job or not and possibly a matter "of life and death".
The Government, it would appear, is unwilling to clear up confusion in this area of law. When Ms O'Keeffe was charged over refusing to divulge her sources to the beef tribunal, the Government promised legislation within nine months. That never happened. Faced with the embarrassing fact that the only person to appear before a court following the tribunal was the journalist whose work was, the reason it was established in the first place, the Government asked the Progressive Democrats to withdraw their Bill in favour of Government legislation which never appeared, that is probably why both legal and journalistic sources appeared eager to get this case into the High Court and even higher as soon as possible. The legal avenue, rather than the legislative one, is probably the only way to change the law and since the Goodwin judgment it is was probably only a matter of time before a major challenge would be taken.
The Barry O'Kelly case would appear ideal. The case in which he was a witness is without major controversy and the National Union of Journalists has already promised to back it "all the way".