The Irish Timeswould be "dead as a newspaper" if the High Court ordered its editor and public affairs correspondent to answer questions aimed at disclosing the source of an article about financial payments to Taoiseach Bertie Ahern when he was minister for finance in 1993, the court was told yesterday.
Eoin McGonigal SC was making closing submissions for Geraldine Kennedy and Colm Keena on the final day of the action by the Mahon tribunal seeking such an order against them.
The case, which has now concluded, was heard before the three-judge divisional High Court, consisting of the president of the High Court Mr Justice Richard Johnson, Mr Justice Peter Kelly and Mr Justice Iarfhlaith O'Neill.
Mr Justice Johnson said the court would reserve judgment but gave no indication when judgment would be given.
The proceedings arise from publication in The Irish Times on September 21st, 2006, of an article, written by Mr Keena and entitled: "Tribunal examines payments to Taoiseach".
The tribunal claims the article was based on a confidential letter sent by it during its private investigative stage to a businessman, David McKenna.
The article reported that the tribunal was investigating a number of payments to Mr Ahern around December 1993 and that Mr McKenna was one of three or four people contacted by the tribunal about payments totalling between €50,000 and €100,000.
Both journalists were summoned before the tribunal on September 26th but refused to provide documents or answer questions which might identify the source of the information. Ms Kennedy told the tribunal the documents had been destroyed. In February last, the tribunal initiated the court proceedings.
Mr McGonigal yesterday said The Irish Times and the defendants had at all times respect for the rule of law and for the superior courts. If the court found in favour of the tribunal in this action, the defendants would have respect for that finding in any future decision they would make.
Mr McGonigal said his clients would never advocate that the rule of law and the decisions of the superior courts would not be obeyed in full at all times and he hoped his remarks would appease any concerns the court might have on such issues. Mr Justice Johnson thanked him and said that dealt with the matter.
In exchanges with Mr Justice O'Neill, Mr McGonigal said his clients had concerns that, although the source of the article was and remained anonymous, the tribunal might still be able to identify it if they answered questions. The defendants could not at this stage take any steps to identify who the source may be.
The source of information leaked to the Guardian newspaper in another case was identified after a document was traced to a photocopier, he noted.
If the source was identified from something the journalists said or did, their reputation and standing as journalists would be diminished and the flow of information on which they relied for their work was completely and unutterably undermined.
That related not just to them but to The Irish Times which would be "dead as a newspaper" so far as obtaining information was concerned.
Mr McGonigal also said the kernel of this case was whether the interference with the right to freedom of expression under the Constitution and article 10 of the European Convention on Human Rights which was sought by the tribunal was necessary in a democracy and in the overriding public interest. His argument was that it was not.
A proper balancing exercise by the court would lead to dismissal of the tribunal's application, he said. On the tribunal's side, it argued it wished to have the source identified to discipline the source and to protect the integrity of the tribunal and its private stage in relation to this and future modules.
The defence argued that there was a fundamental right of persons to state and impart facts and information, to freely express ideas and to remain silent. There was also a fundamental right of journalists to their livelihood and to refuse to identify sources.
Organs of public opinion also had a fundamental right to impart information and citizens had a right to receive it. The education of public opinion was also a matter of grave import to the common good.
When Mr Justice Johnson asked what education of public opinion meant, Mr McGonigal said it was about bringing matters of public importance to the attention of the public.
Mr Justice Johnson said he believed education of public opinion meant "slanting" opinion in such a direction as to coincide with the editorial direction of the paper.
Mr McGonigal said the phrase was from the Constitution. The judge said he understood that, but remarked that the concept of "education" of opinion in, say, the Daily Telegraph newspaper would scarcely be the same as that of the Mirror.
In this case, facts of significant and legitimate public interest were conveyed to the people, were required for urgent consideration by the people of the State and their elected representatives and were the subject of intense debate by the people and the media, Mr McGonigal said.
Earlier, he argued that the tribunal was also not entitled to the order sought as it had failed to show that it had been irreparably damaged by the article, or that the rights of any third party would be damaged if the order was not given.
The tribunal also could not assert confidentiality over the document in question as it had been "released" by the tribunal.
When Mr Justice Kelly put to Mr McGonigal that such arguments fell if the court found the tribunal was engaged in its private stage when publication happened, Mr McGonigal agreed that was the case, but submitted the document fell outside the private stage of the inquiry as the information had been released.
