For some time there have been complaints from various quarters about leaks to the media of information given to the Flood tribunal. A Garda investigation was initiated, and in the last two weeks Mr Justice Flood, as chairman of the tribunal, issued notice of his intention to consider making an order restraining the media from disclosing or publishing documentation or information confidential to the tribunal.

He did not make such an order. Instead, he issued a warning to the media that the publication of further leaks could lead to High Court proceedings against them and ordered Independent Newspapers to surrender the copy of Mr Gogarty's affidavit, which had previously been published in the Sunday Independent.

Why has the tribunal felt it necessary to take such steps against the media, and were they warranted? It is clear that embarrassment to the tribunal, however grave, would not be sufficient reason to attempt to curtail press freedom in this way. Of more substance are the fears expressed that the tribunal, which is investigating planning matters, could be undermined by the leaks. The question is how.

Judge Flood said the work of the tribunal team had been hampered by the leaks, and some of those the lawyers wanted to interview were loath to co-operate for fear that confidential information they might give would end up in the media. The judge's concern, therefore, was to stem the flow of leaks so that the work of the tribunal could proceed unhampered.

In considering these issues, it has to be emphasised first and foremost that a tribunal is not a court of law. It is established on a once-off basis by government to investigate a particular issue or issues. It does not administer justice. In that sense it does not require the level of protection from media or other outside influences that a court of law may require, in relation to pre-trial documents, for example. Indeed, it is specifically set up to further the public interest; its hearings are public, and only the preliminary investigations are conducted out of the public arena. That said, it is his task to ensure that the tribunal can function properly and that fair procedures are adopted. Accordingly, one of Judge Flood's concerns is to protect the rights of third parties and ensure that those implicated in the leaked information get an early opportunity to vindicate themselves.

In these circumstances, the threat of a ban on the media was, perhaps, heavy-handed, but it is clear that Judge Flood was conscious not only that he was presiding over a tribunal - not a court - but also that, given the protection for freedom of expression in both the Irish Constitution and the European Convention on Human Rights, any action taken against the media would have to be narrowly drawn, and would have to be both necessary and proportionate to the aim he sought to achieve. There are, however, some worrying aspects of the episode.

First, there have been a number of reported references to "unauthorised" publication. Such a concept fails to recognise that the function of the media on behalf of the public is not simply to provide them with "authorised" information but rather to ferret out information of importance to them, that the authorities may in some instances wish to keep from them but that is necessary to ensure an informed citizenry. Such a role is all the more important in what has been a particularly secretive society. A second worrying aspect of the threatened action has been the possible application of the proposed ban to newspapers and RTE, which had not already published such material, in case they might do so in the future. It may have been legitimate to put them on notice, as the judge ultimately decided to do, but there were certainly no grounds for banning them from publishing on foot of a vague possibility that they might publish confidential information at some future date.

This was one of the arguments raised in the Cork drugs case earlier this year, when the Supreme Court gave a resounding endorsement of media freedom, the open justice principle and the practical consequences of the right to report on court proceedings.

In such circumstances the media need to reserve their right to make decisions to publish or not in a responsible way, and could not be expected to give an advance undertaking not to publish, irrespective of any situation that might arise.

The wisdom or necessity of issuing such a ban in the case of the planning tribunal would have been called into question by the fact that there is already provision in the Tribunals of Inquiry (Evidence) Acts for fines and terms of imprisonment for anyone obstructing the work of the tribunal.

Even that provision, however, has been criticised by the Law Reform Commission on the grounds that it is too wide and does not stipulate that only intentional or reckless acts or omissions should incur criminal sanctions.

In its 1994 report on Contempt of Court, the Law Reform Commission proposed that there should be no offence of contempt in the face of a tribunal and that a person should only be required to disclose the source of information contained in a publication for which he or she is responsible "if it is established to the satisfaction of the tribunal of inquiry that disclosure is absolutely necessary for the purpose of the inquiry or to protect the constitutional rights of any other person".

The European Court of Human Rights, in a similar vein, has recognised that protection of journalists' sources is "one of the basic conditions for press freedom", as is reflected in the laws of many European states and in journalists' codes of conduct.

Without such protection, the court said in the Goodwin case (1996), sources could be deterred from assisting the press in informing the public on matters of public interest. As a result the vital watchdog role of the media could be undermined and the ability of the press to provide accurate and reliable information could be adversely affected.

"Having regard to the importance of the protection of journalistic sources for press freedom in a democratic society and the potentially chilling effect an order for source disclosure had on the exercise of that freedom, such a measure could not be compatible with Article 10 of the Convention unless it was justified by an overriding requirement of the public interest." Limitations on the confidentiality of journalists' sources will not, therefore, be lightly tolerated, even more so in the case of a tribunal than in the case of a court of law.

The Law Reform Commission also pointed out that the proceedings of tribunals are of very significant public interest, compared to private litigation between individual citizens or criminal proceedings involving one person and his or her victim.

The commission was satisfied, however, that there should be a provision to ensure that witnesses were not discouraged from giving evidence and recommended that it be an offence to publish, say or do anything in relation to evidence which is intended or obviously likely to alter, distort, destroy or withhold such evidence from a tribunal.

The key here is intentional or reckless behaviour designed or likely to undermine the workings of a tribunal. The media role in a democracy is to inform the public, not to deliberately undermine a tribunal for its own or other ends.

It is clear from the Law Reform Commission's analysis and from the experiences of recent and ongoing tribunals that the legislation governing tribunals of inquiry needs to be fine-tuned.

Marie McGonagle is a lecturer in law at NUI, Galway