Copperfastening the right of journalists to protect sources?

Copper nugget, via WikipediaMarie McGonagle, NUI Galway, writes in today’s Irish Times that the judgment in Mahon Tribunal v Keena [2009] IESC 64 (31 July 2009) (also here (pdf)) copperfastens the right of journalists to protect sources (with added links):

The vital public watchdog role of the press was upheld by the Supreme Court

… That decision, particularly as it emanates from a unanimous Supreme Court, must … mark a very significant stage in the development … of legal recognition of the right of journalists to protect their sources.

… Mr Justice Nial Fennelly … proceeded to consideration of the High Court judgment, with which he agreed in many respects. There is no doubt that the High Court judgment was valuable, particularly for its examination of the powers and interests of tribunals under the relevant legislation, and of the European Convention on Human Rights (ECHR) Article 10 principles of freedom of expression, including protection of journalists’ sources. Indeed, the High Court accepted that “the non-disclosure of journalistic sources enjoys unquestioned acceptance in our jurisprudence and interference in this area can only happen where the requirements of Article 10(2) . . . are clearly met”. The principle, which had long been denied in Irish law, was, therefore, firmly established. The questionable aspect of the High Court’s decision was the actual balancing between the interests of the tribunal and the protection of sources.

… The judgment is a model of clarity. It identifies the central issues and sets out in a careful and systematic manner all the relevant strands and legal dimensions. Quite apart from the particular balancing in the circumstances and the actual decision in favour of the journalists, it is a very skilful and impressive elaboration of the case law of the European Court of Human Rights and the import and practical implications of the ECHR Act 2003. For that alone, it is a very useful judgment and a valuable resource.

On the issue of journalists’ sources, it copperfastens the recognition of the centrality of sources in the democratic functioning of the press, a recognition that was not forthcoming in Ireland in earlier decades, but which was prompted in recent times by decisions of the European Court of Human Rights, particularly the Goodwin case …, which Mr Justice Fennelly analysed closely and insightfully. …

As I have already said on this blog, I am not sure that I agree with this perspective. Although Fennelly J did agree with the High Court in many respects, in the end, he did over-rule it, and the only authoritative statement of the relevant law is his decision in the Supreme Court. And whilst the High Court may have paid lip service to the principle of protecting journalists’ sources before holding against them on the facts, the Fennelly J only indirectly referred to that principle. More than that, unlike McGonagle, I think that the judgment is relatively light on citation, and though I agree with her that what is cited an analysed is important, I think that more could have been said about the relevant ECHR jurisprudence. Finally, I agree with her that it is a careful judgment, but I think that the care lies in how limited it is in its protection of journalists’ sources. As a consequence, I agree with Peter Noorlander that it constitutes

a narrow-ish victory and doesn’t move the law forward much – or at all even, but a victory for media freedom nonetheless.

However, it is important to have the alternative view articulated as clearly as McGonagle does; I hope that my reading is too narrow, and that, when the issue again comes before the Irish courts, they take the view that the case really does copperfasten “the recognition of the centrality of sources in the democratic functioning of the press”.

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