Order curtails freedom of expression, hearing told

A HIGH Court order requiring Irish Timeseditor Geraldine Kennedy and public affairs correspondent Colm Keena to answer questions from the Mahon tribunal about the source of an article on financial payments to former taoiseach Bertie Ahern is "an impermissible restriction" on the right to freedom of expression, the Supreme Court was told yesterday.

This story about payments was at the very heart of the public interest and dominated public discourse here after publication in September 2006 into 2007 and through a general election, Donal O'Donnell SC said.

There was no dispute about the article's accuracy but, when the information came into the possession of The Irish Times, it was not then apparent that it would ever be made public as it was not within the tribunal's terms of reference, having been received during the tribunal's private, investigative stage.

The High Court decision paid no adequate regard to the duty of journalists to impart this information to the public, Mr O'Donnell added.

Counsel was opening the appeal by Mr Keena and Ms Kennedy against the October 2007 three-judge High Court order requiring them to answer questions relating to the source of the article.

A stay on that order continues pending the outcome of the appeal before the five-judge court, presided over by the Chief Justice, Mr Justice John Murray.

The appeal is expected to conclude today, with judgment reserved.

The September 21st, 2006, article, written by Mr Keena, disclosed that the tribunal was investigating financial payments to Mr Ahern when he was minister for finance in 1993.

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 stated Mr McKenna was among three or four persons contacted by the tribunal about payments totalling between €50,000 and €100,000.

After both journalists refused to answer the tribunal's questions about the article, the High Court ruled The Irish Timesprivilege against disclosure of sources was "overwhelmingly outweighed" by the "pressing social need" to preserve public confidence in the tribunal.

The court stressed that its decision must be seen in the circumstances of this case, where answers to the questions were unlikely to reveal the source.

If they could lead to source identification, the journalistic privilege against disclosure could be invoked, it said.

Yesterday, Mr O'Donnell argued the High Court was wrong to conclude the questions were unlikely to reveal the source.

The tribunal had said it wished to exculpate itself as the source but, if the appellants answered any questions at all, these would narrow the ground and could lead to identification.

The High Court order was equivalent to allowing the tribunal to play a "deadly parlour game" where, on one version, his clients could go directly to jail.

The appellants were unaware of what information was in the tribunal's possession following its inquiry aimed at identifying the source.

Equally, Mr Keena, as part of his two-day story verification process, may have arrived at views as to the source.

The High Court order was based on a "fundamental illogicality" as there was "a significant difference" between what the tribunal sought and what the High Court ultimately ordered.

The tribunal wanted the court order to try and identify the source of the article and exclude itself as the source.

But the "extraordinary paradox" was that the High Court only granted the order on the basis that it was impossible to perform, as the article was based on documents sent to Mr Keena by an anonymous source and destroyed by The Irish Times.

This was "a completely fallacious piece of logic" and the High Court had allowed itself to be driven off course by its condemnation of the destruction of the documents.

Mr O'Donnell also argued that the court order imposed unnecessary restrictions on freedom of expression not justified by overriding requirements of the public interest.

The tribunal, as an organ of State, must adhere to the requirements of the European Convention on Human Rights Act.

Counsel said the 1996 ECHR decision in the Goodwin case had effected "a sea change" in the law on freedom of expression and protection of journalistic sources.

Goodwin and other cases had established that the right not to reveal sources could only be overridden in exceptional circumstances - and there were no such circumstances here.

In addressing this issue, the High Court had incorrectly balanced the interests of the journalists and of the tribunal and had wrongly concluded, because the source was anonymous and the documents had been destroyed, that the journalists' interest was "almost non-existent".

The ECHR decision made no distinction on whether a source was anonymous or not.

The court order had an impermissible "chilling effect" on freedom of expression and was incompatible with the functions of the press, the rights of citizens and the very limited scope for restricting speech about politicians.

The High Court had taken "far too blunt a view" of the facts and had reached "unjustifiable conclusions" on certain issues in the absence of any factual inquiry or hearing evidence from Mr McKenna.

Those conclusions included that the tribunal had not authorised the leaking of the information. The court had constructed a version of events allowing it to conclude the matter did not involve the protection of journalists' sources at all.

Counsel further argued that the tribunal's right to confidentiality over documents produced during its private stage was not an issue in the case.

The tribunal had a legitimate interest in sustaining confidence of witnesses before it, but this was an attenuated interest.

The tribunal, unlike the media, had the power to compel persons to appear before it.