Protect the messenger

The work of news journalists is vital to a functioning democracy, yet they operate with no special powers or privilege and even risk imprisonment. New legislation is badly needed, writes Conor Brady

The book has sat on my bookshelf now for almost a decade and a half. A Law Reform Commission Consultative Paper on Contempt of Court, it was published in 1991.

It runs to 447 pages including appendices and index. The President of the Law Reform Commission who signed off on it was a High Court judge called Ronan Keane. The young researchers who collaborated with him and the other commission members are now senior barristers or academics. There have been, by my reckoning, five Ministers for Justice since the report was completed and despatched to the Government and the Houses of the Oireachtas.

What has been done about it? In practical terms, very little. Its 69 recommendations might as well have been thrown into the duck pond in St Stephen's Green outside the Law Reform offices.

Now yet again, we have the predictable routine of a journalist hauled before the courts, ordered to reveal the sources of his information and threatened with jail. With equal predictability, he refuses. In addition, his newspaper is served with an order prohibiting the publication of any further "unauthorised" information. To its credit, the operating company does not buckle and stands behind its journalist, Barry O'Kelly.

O'Kelly is the crime correspondent of The Sunday Business Post. His difficulty in this instance arises from the fact that he published material due to be presented in evidence before the Mahon Tribunal.

Once can have some sympathy for Judge Alan Mahon. The publication of material which is due to come up as evidence may well disorder its proceedings. Judge Mahon and his team may well find the work of journalists irksome and perhaps even in conflict with the Tribunal's purposes.

But of course, on the other hand, there wouldn't be any Tribunal at all were it not for journalists who pulled and dug away persistently at the planning scandals and the crooked links between business, politicians and officials. Along the way, not a few of those journalists, their editors and their publishers risked charges of contempt and defamation when crooked and corrupt men reached for their lawyers in order to gag the media.

This is not intended as any rebuke to Alan Mahon, who has shown himself competent, thorough and decisive since he took over the Tribunal. He has to apply the law as he finds it and he has to vindicate the authority of the Tribunal, established by order of the Oireachtas.

The problem is that nowhere in Irish law is there any recognition of the indispensable function discharged by journalism in a free democracy. Every other functionary in a state operating to the rule of law has a measure of protection in what he or she does – from traffic wardens to Cabinet Ministers. But journalists are –literally – outside the law, when they claim the right to protect their sources.

Democracy cannot function without a free flow of reliable information. The work of the news media is the oil that flows through and lubricates the engine of democracy. Yet the media operate without any special powers of discovery or inquiry or privileged access to information. They have no search-warrants or powers of entry. Inevitably, they will make mistakes or cross into the field of bodies established by statute or by order.

Then they are on the hazard. And people like Barry O'Kelly face the threat – albeit a remote one – of prison.

It isn't like this in many other countries – certainly not to the same degree. Austria, Germany, Denmark, Sweden and the UK have all taken significant steps towards recognising the right of a journalist to protect his or her sources. A landmark case in the UK concerned a journalist, William Goodwin, whose case ended up at the European Court of Human Rights. There, the judges held that a journalist's right to protect sources "should not be interfered with unless in exceptional circumstances, where vital public or individual interests are at stake."

The Goodwin judgment is now entrenched in European Law. The European Convention on Human Rights has been imported into Irish law. It would seem logical that it may be cited in support of O'Kelly's claim to privilege. The way must be open for an appeal to Strasbourg. Were it to be successful – and the prospects would appear to be good – the Government would have to amend Irish law to conform with the European ruling.

When Mr Justice Keane and his fellow Law Reform commissioners set out their report in 1991, the tribunals which have been a central feature of Irish public life for more than a decade now simply did not exist.

The Hamilton tribunal into the beef processing industry was but a gleam in the eyes of opposition deputies in the Dáil. The stories told by the Gogartys, the Redmonds, the Burkes, the Murphys – all that cast of characters that have passed through Dublin Castle – were, as yet, untold.

Since then, an extraordinary dynamic has developed, involving journalists, parliamentarians, lawyers and enforcement officers. No single agency or group can claim credit for prising open the various cans of worms that have been discovered. Each has played its part. The media have challenged, probed and acted as a vehicle for whistle-blowers. Sometimes they have got it wrong. But that is a price that has to be paid. The others – those vested with the power of the law – have often built their cases on the foundations laid by the journalists.

The 1991 Law Reform document looks limp, dated and inadequate now. Yet it remains the template for discussion and review in this whole area. It is time that a fresh look was taken and legislation brought forward that recognises reality.

Conor Brady is Editor Emeritus of The Irish Times. He is a senior teaching fellow at the Michael Smurfit Graduate School of Business at UCD, where he lectures in modern media