Victory for journalism in the High Court

The Sunday Business Post has recently won a High Court battle with the Mahon Tribunal, which was trying to stop the publication of confidential Tribunal documents. It's an important judgement for Irish journalism, writes Conor Brady

The cheers must be muted, since the Mahon Tribunal has appealed the matter to the Supreme Court. But media practitioners were gladdened by High Court Judge Peter Kelly's decision, on 4 October, to throw out the Tribunal's attempt to stop the Sunday Business Post from publishing documents that came into the possession of its reporter, Barry O'Kelly.

And there can be cheers for the newspaper's – and Barry OKelly's – resolve not to buckle under the threat of contempt and possible imprisonment for refusing to reveal the sources of the documents in question.

Mr Justice Kelly's decision related only to the issue of restraint on publication – as sought by counsel for the Tribunal. It did not explicitly deal with the threat to hold the journalist and his newspaper in contempt for refusing to identify the sources of his reports. In theory, the Tribunal could pursue this through the courts to a final adjudication. But since the material in question has now been deemed to be publishable, it would appear that the issues of sources and contempt are moot.

This was an important judgment in terms of the Irish news media's ability to do their job. And it may, in time, be seen as helping to tip the balance finally in favour of a recognition of journalistic privilege and the right of journalists to withhold the identities of individuals who give them important information.

Significantly, Mr Justice Kelly cited Article 10.2 of the European Convention on Human Rights in support of his decision to refuse the Tribunal's application. Article 10.2 guarantees freedom of expression. It has been invoked in a number of cases brought before the European Court of Human Rights from other jurisdictions including Austria, Germany and the UK. But to the best of my knowledge it has not been explicitly acknowledged by an Irish court dealing with an application of this nature before.

The news media generally have taken considerable glee in the decision, not least because of the robust language employed by Mr Justice Kelly in giving his verdict. The Tribunal "had taken a blunderbuss as its weapon of choice", he said. He had sympathy with the Tribunal. The rights of the media to publish and to report were not unfettered. But the Tribunal had chosen the wrong way to go about its business. "What was required was a weapon of precision which would protect that deserving of protection, while inflicting collateral restrictions on the defendants' rights," he declared.

Barry O'Kelly had published two articles concerning the Tribunal last October in the Sunday Business Post. They had come into his possession in advance of their being presented before the Tribunal at Dublin Castle. The articles were based on a set of documents prepared for and circulated on a restricted basis by the Tribunal, in advance of public hearings, to the parties due to be heard.

Before ever passing through a photo-copier, the documents in question could have been, and probably were, seen by dozens of people involved in the Tribunal's proceedings. It is precisely in circumstances such as these that journalists with developed contacts can expect a quiet telephone call telling them to expect something interesting in the post or dropped on their doormat at night.

Demanding that a journalist identify his or her sources in this sort of scenario is inviting them to commit career suicide if they comply. Irish journalists have gone to jail or been threatened with it as a result. The late Kevin O'Kelly of RTÉ was the last person to be lodged in a Mountjoy cell (in 1977) but others have been faced with the prospect, notably Susan O'Keeffe, whose TV documentary had led to the establishment of the Hamilton tribunal on the beef processing industry.

The lesson for judges, lawyers and tribunals, one would have thought, is a fairly clear one. There is simply no point in going after journalists for contempt. Irish statute law may not (yet) recognise the concept of journalistic privilege. De jure it may be no more than an implied right deriving from the European Convention on Human Rights. But Irish journalists and the organisations that employ them have made it a de facto reality on the ground.

In this case the Tribunal had been granted a temporary order preventing the publication of further extracts from the leaked documents, pending a full hearing in court. Orders for prior restraint on publication have been rare enough in the Irish courts and the granting of the temporary order had been met with some apprehension in media circles. Simultaneously, there was a disquieting awareness of the unhappy example of New York Times reporter, Judith Miller, jailed in Virginia over the summer for refusing to reveal sources within the White House administration. Miller was finally released on 29 September ago when her confidential source agreed to waive his right to anonymity.

Mr Justice Kelly's judgment has not given Irish media a license to publish whatever it gets its hand on regardless of consequences. But it has confirmed that in the view of his court, at least, not everything put out under the hand of a powerful legal entity such as a Tribunal is "confidential" simply because that entity says so.

It confirms that the media – and the general public it serves – have rights to know certain things. And that even if they come into the possession of journalists through unorthodox means, they may still be published. That expresses an important principle. It remains to be seen if the Supreme Court takes the same view.

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