The reputation of citizens could be profoundly damaged if newspapers reveal they are being investigated by a tribunal, the High Court heard today.
The Mahon tribunal is taking the Sunday Business Postnewspaper to the High Court to obtain a permanent injunction to prevent it publishing any confidential material from the tribunal.
Paul O'Higgins SC said the tribunal had a duty under the Constitution to protect the privacy of the people who co-operated with it.
He added that even the disclosure that the person was dealing with the tribunal could breach their right to privacy. "It is in general a profoundly damaging thing for a person to be spoken of, in whom any one of the tribunals has taken an interest," he said.
The Mahon tribunal circulates confidential material, including witness statements and other documents, to relevant parties six weeks before it begins a module into a particular planning corruption allegation.
Mr O'Higgins said the Sunday Business Posthad refused to give an undertaking that it would not publish such confidential information. He said wholly unobjective people could use newspapers to put "blackening material" into the public domain in a subjective way, months before it was examined in public session at the tribunal.
Judge Peter Kelly asked if this meant the immediacy of cross examination at the tribunal was lost. Mr Higgins agreed, adding: "And the damage to reputation has long been done before the cross examination can begin."
The Mahon tribunal is also seeking a High Court order against Sunday Business Postjournalist Barry O'Kelly to force him to reveal the sources for the confidential material. Judge Kelly asked what powers the tribunal had to designate its documents as confidential.
Mr O'Higgins said the tribunal had a statutory power under the amended Tribunals of Inquiry Act to make orders to that effect. He said lawyers for the Sunday Business Postwould argue it was entitled to publish confidential material under the freedom of speech provisions of Article 10 of the European Convention on Human Rights.
However, he said the newspaper was actually in breach of Article 10 itself. "I say the conduct of this paper is in effect an invasion of the right of citizens to communicate freely . . . and confide to the tribunal," he said.
Mr O'Higgins said there was a real danger that citizens would not co-operate with the tribunal if steps were not taken to prevent their right to confidentiality being breached.