The decision of The Irish Timesto publish the material on Bertie Ahern's finances in September of last year was a correct one, writes Vincent Browne
Had the newspaper not published this material the issue of whether the Taoiseach had received monies improperly at the time he was minister for finance in 1993 and 1994 and immediately afterwards, would not have featured at all in the election campaign. Manifestly this was and remains a major political issue for, if the Taoiseach of this country has been compromised by financial donations, it is of concern to every citizen.
Yes, the publication of that material did damage to the reputation of the planning tribunal and did compromise its inquiries into the same issue. But, on balance, one would have to say that, because of the imminence of the general election, it was right to give precedence to the interests of the electorate in knowing this before it decided on which party or combination of parties to put back into office.
I am not saying incidentally that the decision on the balancing of such issues is foremost with editors and journalists, but given that the editor of this newspaper had to decide on whether to publish or not to publish I think she made the correct decision.
The fact that so little was made in the election campaign of Bertie's Ahern's finances is not the fault of The Irish Times. Quite separate from that, however, is whether The Irish Timeswas right to destroy the document that was sent to it anonymously and unsolicited, the document upon which the story about Bertie Ahern's finances was based, having been ordered by the tribunal to produce the document. And whether the editor, Geraldine Kennedy, and one of its chief investigative journalists, Colm Keena, were right to refuse to answers questions about that document when asked by the tribunal.
There is a clear-cut public interest in journalists not being required to disclose the identity of sources for stories that bear on the integrity of office holders. If whistleblowers who resort privately to the media to expose wrongdoing believe their identity will be disclosed, there will be less whistleblowing and more and more wrongdoing will remain unexposed. That is why the protection of journalists' sources is important and why the courts and the State should seek to protect the public interest in such protection.
But the claim that the protection of sources is an absolute or that it is journalists alone who should decide whether this public interest prevails against other important interests at any time is unsustainable.
Manifestly the protection of sources cannot be absolute. For instance, where a child has been abducted and is at risk of being sexually abused and/or murdered, if the disclosure of a journalist's source was likely to lead to the rescue of the child, it is obvious where the public interest would lie. Yes, I know that is not what is involved with the Mahon tribunal but I hope it makes the point that a claim of "absolute" privilege for journalists' sources is not tenable.
As the illustration shows, the public interest in protecting journalists' sources sometimes comes into conflict with other public interests. And a separate question arises, who should determine where the balance of the public interest lies, should it be journalists or should it be within the prerogative of the institution whose constitutional function, in part, is to determine where such balances lie, ie the courts?
The idea that it should be journalists who should decide where the balance lies accords a function to the profession which, legally, professionally and ethically, it is not ordained or qualified to make. In all other instances in society - whether, for instance, the privilege of the confessional should take precedence over the requirements of disclosure in a given instance - it is not the prerogative of the Catholic clergy or even hierarchy, it is a function of the courts. I suspect many of those who protest about the inviolability of journalists' privilege would be incensed at the idea that the Catholic Church would take upon itself to decide an issue such as this, which is properly the function of the courts.
In the case now at issue the arguments on both sides are, I believe, weak. There is not a pressing public interest in discovering who leaked a tribunal document even if the purpose of uncovering this is to protect the reputation of the tribunal. But also there is not a huge public interest in protecting the identity of an anonymous source. How could there be? Were it the case that The Irish Timesgave an explicit undertaking to an unidentified whistleblower to protect their identity, then a serious issue would be at stake and, in my view, only in the most exceptional circumstances could that public interest be overridden.
But this decision ultimately would have to rest with the courts, and from the judgment of the three-judge High Court, it seems clear that the courts here would accord very considerable weight to the public interest in non-disclosure. There is no crisis of journalism. Well, not in that way anyway.