Geraldine Kennedy - A velvet fist in a velvet glove

The High Court judgement in the Irish Times v Tribunal case vindicates the protection of sources by journalists and offers Geraldine Kennedy and Colm Keena an honourable  escape for their dilemma By Vincent Browne

Amidst the fulminations about anathema, an affront to democracy and reprehensible conduct, the judgement is good for freedom of the press and offers a way out for Geraldine Kennedy and Colm Keena of the Irish Times. First on the freedom of the press issue. The judgement of the three judge High Court (it is unlikely the Supreme Court would go against such a heavy-weight line up of the High Court President, Richard Johnson, and two other heavy-lifters, Peter Kelly and Iarlaith O'Neill) gives an acknowledgement of the importance of protecting journalists' sources not previously accorded here.

They noted Article 10 of the European Convention of Human Rights which states:

“Freedom of Expression

1. Everyone has the right to freedom of expression.  This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent states from requiring the licensing of broadcasting, television or cinema enterprises.

2. The exercise of these freedoms, carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”

The court then went on to give a brief summary of the judgements in all the major media cases by the European Court of Human Rights in a full acknowledgement and acceptance of the reasoning of that court.

They said specifically: “An essential feature of the operation of a free press is the availability of sources of information (for journalists). Without sources of information journalists will be unable to keep society informed on matters which are or should be of public interest. Thus there is a very great public interest in the cultivation of and protection of journalistic sources of information as an essential feature of a free and effective press”.  

But, as did the European Court of Human Rights in various cases, they acknowledged that this freedom must be balanced against other freedoms and interests and they insisted that the decision on how that balance should be decided was one for the courts and the courts only. This too was fully in accordance with the reasonings of the European Court of Human Rights.

They said: “There is a very great public interest in the cultivation of and protection of journalistic sources of information as an essential feature of a free and effective press… These cases also illustrate on the part of the European Court of Human Rights a stalwart defence of freedom of expression, and a trend of strictly construing potential interferences with that right that might claim justification under the variety of justifiable interferences set out in Article 10(2). This approach by the European Court of Human Rights is particularly evident in cases involving publications relating to political matters”.  They went on to claim journalists should have little fear that the courts would not be given “just consideration” and “vindicated where appropriate”.

This led them into the excoriation of what the Irish Times had done, especially in destroying the document on which they based its story concerning the finances of Bertie Ahern.

They then noted that the claim to protect sources was a very thin one in this instance because, according to the Irish Times, the document in question was given to them anonymously. They said: “In respect of anonymous communications, in principle, either the privilege against non-disclosure should not be invoked at all or, if it is to be invoked, only the slightest of weight should be attached to it for the plain reason that 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”.  

But the Irish Times might be able to provide information from which it could be deduced that the document did not originate with the Tribunal, even though it would be impossible to trace the source of the “leak”.

This seems to offer the compromise: that the Irish Times acknowledge that the judgement represents a significant breakthrough here for press freedom and protection of journalists' sources (although, obviously, not absolute protection) and that what is now at issue vis-à-vis the Tribunal is not the disclosure of a source – for that is impossible – but the disclosure of information that would help to vindicate the reputation of the Tribunal. And that is now the only issue at stake between Geraldine Kennedy and Colm Keena of the Irish Times and the Planning Tribunal.