Analysis:The court has seriously undermined the media's claimed right to refuse to disclose sources, writes Paul Cullen.
The High Court's decision in the case brought by the planning tribunal against The Irish Timeshas profound implications for journalism, although it is unlikely to change the way individual reporters operate.
By ordering two Irish Timesjournalists to answer questions at the tribunal aimed at disclosing their source of information about payments to the Taoiseach in 1993, the court has seriously undermined the media's claimed right to refuse to disclose sources.
However, non-disclosure of sources remains a central tenet of journalists' work, for practical reasons as much as any issue of principle. No whistleblower would give information to a reporter who failed to respect his or her anonymity. For this reason, journalists will continue to keep secret the identity of people who leak information, regardless of what any judge or court says.
The decision is a victory for the tribunal, though in practical terms it serves little purpose. Unless it is appealed, Irish TimesEditor Geraldine Kennedy and Public Affairs Correspondent Colm Keena will continue to refuse to divulge their sources when the matter returns to the tribunal. The case will then have to return to the court for contempt proceedings.
At the heart of this case are the sometimes conflicting rights of the tribunal to conduct its business as it sees fit and the right of the media to freedom of expression. However, before embarking on this balancing exercise, the three judges of the court satisfied themselves that the tribunal had the right to carry out an investigation into the Irish Timesleak by summonsing the two journalists and ordering them to hand over the documents on which the article, published in 2006, was based.
These documents, including a letter sent by the tribunal during its private investigative phase to businessman David McKenna, were clearly marked confidential, and the court ruled yesterday that this injunction applied not just to the recipient but to third parties who came into possession of the letter.
The judges also ruled that the tribunal had the right to hold investigations in private and to impose an obligation of confidentiality on this phase of its work. A crucial distinction is drawn between this case, involving a leak of a document from the private investigatory phase of the tribunal, and a case involving the tribunal and the Sunday Business Post, which published confidential documents circulated to parties in advance of public hearings.
The first document might never have seen the light of day had the tribunal decided not to proceed with public hearings, whereas the latter documents were always going to be published once hearings started. What isn't clear, however, is how a journalist is to know to what phase of investigation a tribunal document belongs.
In the Postcase, the tribunal sought a blanket ban on the publication of such documents, but lost. This time around, the tribunal won, arguably, by being far less ambitious; essentially, its main aim is to show that it was not the source of the leak.
On balancing the rights of journalists and the tribunal, the court points out that the right of freedom of expression set out in Article 10 of the European Convention on Human Rights, while being "of the highest order of importance", may be subject to such restrictions as are "necessary in a democratic society". It reserves harsh criticism for the action of the Irish Timesjournalists in destroying the documents on which the article was based.
Although the tribunal's lawyers had not sought an order demanding the production of the documents, the High Court judges decided to attach "great weight" to their destruction in striking the balance between the interests at issue in this case.
The three judges also argue that because the documents, which were unsolicited, came from an anonymous source journalists should not claim privilege against disclosure for them. "If a journalist cannot identify the source of his information it is nonsense to say that there is a professional obligation to protect that source from disclosure."
Oddly, the judges go on to argue that if the questions the tribunal were to ask of the journalists were to identify their source, then the privilege against disclosure could be invoked. In contrast, little weight was attached to their claim for protection of sources precisely because the documents have been destroyed and there is little risk of the questions causing the source to be identified.