Judgment copperfastens right of journalists to protect sources
ANALYSIS:The vital public watchdog role of the press was upheld by the Supreme Court, writes MARIE McGONAGLE
IN 1987 two journalists won a High Court case establishing that their constitutional right to privacy had been breached when their telephones were tapped. That case marked a significant step in developing recognition of a constitutional right to privacy.
One of those journalists was Geraldine Kennedy. Last Friday, Kennedy, now the editor of The Irish Times, and journalist Colm Keena won their Supreme Court appeal against a High Court order requiring them to reveal to the Mahon tribunal the source of a 2006 article by Keena.
That decision, particularly as it emanates from a unanimous Supreme Court, must, like the 1987 case, mark a very significant stage in the development, on this occasion, of legal recognition of the right of journalists to protect their sources.
The circumstances of the case are widely known. Keena’s article relied on a copy of a confidential letter, received by him anonymously and unsolicited, regarding payments made to Bertie Ahern while he was minister for finance. The tribunal made an order requiring the journalist and editor to produce all related documents, but, following receipt of the order and a meeting with legal advisers, the editor asked the journalist to destroy them.
That factor weighed heavily in the subsequent High Court hearing in which the tribunal sought and obtained orders compelling Kennedy and Keena to comply with the tribunal’s orders.
Judgment in the appeal to the Supreme Court was delivered by Mr Justice Nial Fennelly. Having set out the background details, he proceeded to consideration of the High Court judgment, with which he agreed in many respects. There is no doubt that the High Court judgment was valuable, particularly for its examination of the powers and interests of tribunals under the relevant legislation, and of the European Convention on Human Rights (ECHR) Article 10 principles of freedom of expression, including protection of journalists’ sources.
Indeed, the High Court accepted that “the non-disclosure of journalistic sources enjoys unquestioned acceptance in our jurisprudence and interference in this area can only happen where the requirements of Article 10(2) . . . are clearly met”. The principle, which had long been denied in Irish law, was, therefore, firmly established. The questionable aspect of the High Court’s decision was the actual balancing between the interests of the tribunal and the protection of sources.
Mr Justice Fennelly found that the High Court was correct in its analysis of the power of the tribunal to investigate unauthorised disclosure of its confidential information. The appeal, therefore, turned entirely on the balance struck. He proceeded to set out and then apply the terms of the ECHR Act 2003, which incorporated the European Convention on Human Rights into Irish law “subject to the Constitution”.
Although the Act was passed in 2003, detailed judicial consideration of its implications has been rather limited to date and, thus, this part of the judgment is particularly helpful.
The judgment cites extensively the general principles on freedom of expression set out in the case of Lingens v Austria, then moves to the more specific principles on confidentiality as a restriction on freedom of expression in Fressoz and Roire v France and finally the particularly relevant principles on protection of sources in Goodwin v the UK. In Goodwin in 1996 the European Court of Human Rights stated that protection of journalists’ sources is “one of the basic conditions for press freedom”, that without such protection “sources may be deterred from assisting the press in informing the public on matters of public interest”, that as a result “the vital public watchdog role of the press may be undermined and the ability of the press to provide accurate and reliable information may be adversely affected” and given this importance and the “potentially chilling effect” an order for source disclosure has . . . such a measure cannot be compatible with Article 10 of the convention unless it is justified by an overriding requirement of the public interest.”
The courts in the US may not be as protective of sources, as Mr Justice Fennelly points out, but more recent decisions of the European Court of Human Rights, such as Voskuil v the Netherlands and Tillack v Belgium in 2007, as well as the declaration of the committee of ministers of the Council of Europe on investigative journalism in 2007, which calls on member states to ensure the right of journalists to protect their sources, continue the pattern of strong support at European level.
In the end, the Supreme Court judgment stressed that it is the courts that have the responsibility of deciding when a journalist is obliged to disclose his or her source (while respecting the principle of journalistic privilege) and not journalists; that no citizen has the right to claim immunity from the processes of law.
It raised the issue of a compelling need in the case of serious crime, for example, although as the recent Northern Ireland decision in the case of Sunday Tribune journalist, Suzanne Breen, illustrates, there may be other relevant circumstances at play, even in relation to serious crime.
In that case, the judge said that the journalist’s sources formed but one part of the investigation, and other evidence showed that there was a real and immediate, indeed continuing threat to the journalist’s life, which weighed heavily in the balance.
On the issue of the destruction of documents, Mr Justice Fennelly did not disagree with the High Court’s language condemning it, but the issue to be decided, he said, was not whether that act was a wrongful one (the context was not contempt of court, for instance) but the narrower question of whether in circumstances where the documents no longer existed, and anyway the source was anonymous, there was, to quote Goodwin, an overriding requirement in the public interest. He found it difficult to discern any clear benefit to the tribunal to justify making the order for source disclosure and so allowed the appeal.
The judgment is a model of clarity. It identifies the central issues and sets out in a careful and systematic manner all the relevant strands and legal dimensions. Quite apart from the particular balancing in the circumstances and the actual decision in favour of the journalists, it is a very skilful and impressive elaboration of the case law of the European Court of Human Rights and the import and practical implications of the ECHR Act 2003. For that alone, it is a very useful judgment and a valuable resource.
On the issue of journalists’ sources, it copperfastens the recognition of the centrality of sources in the democratic functioning of the press, a recognition that was not forthcoming in Ireland in earlier decades, but which was prompted in recent times by decisions of the European Court of Human Rights, particularly the Goodwin case above, which Mr Justice Fennelly analysed closely and insightfully. In fact, the first chink of light for journalists in Ireland occurred by reference to the Goodwin case in a Circuit Court case in 1996 involving journalist Barry O’Kelly. The passing of the ECHR Act 2003 gave a new impetus and the Supreme Court decision in Keena and Kennedy is a very significant step forward.
Marie McGonagle lectures in Law at NUI, Galway. She is currently working on a third edition of her book Media Law to be published by Thomson Reuters