“The right of a free press to communicate information without let or restraint is intrinsic to a free and democratic society”

Luminarium, Dublin, 15 Jan 2007I have recently commented on this blog that the right to freedom of expression Article 40.6.1(i) has finally got some teeth!?. That process continued today in the Supreme Court, where Fennelly J uttered the line used as the title to this post.

RTE News reports:

Tribunal loses Supreme Court appeal

The Mahon Tribunal has failed in an attempt to ban publication by the media of material circulated by the tribunal in private in advance of public hearings with a direction that they should remain confidential.

The tribunal appealed the decision of the High Court not to grant a perpetual injunction preventing the Sunday Business Post and others from publishing such material.

But in a majority decision the Supreme Court dismissed the tribunal’s appeal. The court said the tribunal was seeking an order that would restrict freedom of expression. …

Ireland.com reports that:

… the National Newspapers of Ireland (NNI) which represents daily, Sunday and national weekly newspapers sold in Ireland, welcomed the decision as “a significant vindication of the role of the press.”

The judgments have been made available on the Courts Service website. The majority judgment (Fennelly J; Murray CJ and Denham J concurring) is here; the minority judgment is here. From the judgment of Fennelly J for the majority:

41. Freedom of expression is, of course, guaranteed both by the Constitution and by the [European] Convention [on Human Rights], but, even without those guarantees and simply on the basis of the common law, it is elementary that any party asking a court to impose prior restraint of publication must justify it.

42. … The courts do not pass judgment on whether any particular exercise of the right of freedom of expression is in the public interest. The media are not required to justify publication by reference to any public interest other than that of freedom of expression itself. They are free to publish material which is not in the public interest. I have no doubt that much of the material which appears in the news media serves no public interest whatever. I have equally no doubt that much of it is motivated, and perfectly permissibly so, by the pursuit of profit. Publication may indeed be prompted by less noble motives. So far as the facts of the present case are concerned, the decision of Mr O’Kelly to publish the names of three TD’s in direct defiance of the wishes of the Tribunal was disgraceful and served no identifiable public interest. On the other hand, that does not mean that it was unlawful.

43. The right of freedom of expression extends the same protection to worthless, prurient and meretricious publication as it does to worthy, serious and socially valuable works. The undoubted fact that news media frequently and implausibly invoke the public interest to cloak worthless and even offensive material does not affect the principle. …

51. Clearly, the Constitution, unequivocally guarantees both the right to express convictions and opinions and the right to communicate facts or information. These rights are inseparable. It matters little, at least for present purposes, which Article of the Constitution expresses the guarantee. The right of a free press to communicate information without let or restraint is intrinsic to a free and democratic society.

Much with which to conjure here, not least with my cry for help on this blog for my paper on disentangling the enumerated right to freedom of expression in Art 40.6.1(i) and the unenumerated right to communicate, to both of which Fennelly J referred in his judgment.