So, does Irish law now recognise a journalist source privilege?

The Four Courts, by Darragh Sherwin, via Flickr.As I wrote in my previous post, the Supreme Court in Mahon Tribunal v Keena [2009] IESC 64 (31 July 2009) (also here (pdf)) allowed the appeal against the decision of the High Court in Mahon v Keena [2007] IEHC 348 (23 October 2007). Fennelly J delivered the judgment of the Court, in which Murray CJ and Geoghegan, Macken and Finnegan JJ concurred, and its effect is that two Irish Times journalists could decline to answer questions about their sources (unsurprisingly, there is a lot of coverage in that paper: see here, here, here, here and here).

1. Introduction
There are at least three important aspects to Fennelly J’s decision. The first relates to his almost exclusive reliance on the European Convention on Human Rights (ECHR), rather than the Irish Constitution. The second relates to his approach to the issues in general and to his treatment of the High Court judgment in particular: in short, he felt that the High Court had overstated the balance against the appellants. And the third relates to what he had to say about the nature of a journalist source privilege: in short, he preferred to avoid such language in favour simply of a balancing test. Taking all these issues into account, I’m not convinced that it is an unequivocal recognition of a journalist source privilege as a matter of Irish law; instead, it seems to me that this is a very carefully circumscribed decision which is, at best, a muted victory for the journalists.

2. The Convention and the Constitution
There is little discussion of the impact of the Constitution in Fennelly J’s judgment. Instead, his analysis in effect began with and focussed almost entirely upon the ECHR (an important international instrument, to be sure, but not the only one). At paragraph 43 of his judgment, he held that the combined effect of sections 2, 3 and 4 of the the European Convention on Human Rights Act, 2003 (also here) is that the relevant sections of the Tribunals of Inquiry legislation (see 1921, 1979 (also here), 1997 (also here), 1998 (also here), 1998 (another) (also here), 2002 (also here), 2004 (also here), 2004 (another) (also here)) must be interpreted in a manner compatible with the State’s obligations under the Convention provisions. This is an important reaffirmation of a basic principle of Irish human rights law, but it has the effect of allowing the Court to dodge the issue under the Constitution.

Article 10 of the ECHR protects freedom of expression, and the European Court of Human Rights (ECtHR) has held that the protection of journalistic sources is one of the basic conditions for press freedom under the ECHR, since, without such protection, sources may be deterred from assisting the press in informing the public on matters of public interest. Fennelly J considered the effect of the analysis of that Article in Lingens v Austria 9815/82 [1986] ECHR 7 (8 July 1986), Fressoz and Roire v France 29183/95 [1999] ECHR 1 (21 January 1999) and Goodwin v UK 17488/90 [1996] ECHR 16 (27 March 1996). At paragraph 47, he said that these judgments “emphasise not merely the fundamental right to freedom of expression but, in the case of the press, its indispensable contribution to the functioning of a democratic society”, and at paragraph 49, he said

Nonetheless, the court constantly emphasises the value of a free press as one of the essential foundations of a democratic society, that the press generates and promotes political debate, informs the public in time of elections, scrutinises the behaviour of governments and public officials and, for these reasons, that persons in public life must expect to be subjected to disclosure about their financial and other affairs, to criticism and to less favourable treatment than those in private life. Generally, therefore, restrictions on freedom of expression must be justified by an “overriding requirement in the public interest.”

As to the strength of such requirements, he referred in particular to Goodwin (the leading ECtHR case on journalists’ sources), and at paragraph 52, he said that the ECtHR

… considered that the interests protected by that Article 10 “tip the balance of competing interests in favour of the interest of democratic society in securing a free press” and that “the residual threat of damage through dissemination of the confidential information otherwise than by the press, in obtaining compensation and in unmasking a disloyal employee or collaborator were, even if considered cumulatively, not sufficient to outweigh the vital public interest in the protection of the applicant journalist’s source.”

This quotation is as close as he got to asserting that a journalistic privilege exists as a matter of Irish law. He frequently referred to the balancing of various interests, but he never expressly asserted that one of those interests was a journalistic privilege. He may have assumed that it is so obvious a proposition that it went without saying, but it is more likely that this is a deliberate strategy on his part. Moreover, since he based his decision on the Convention, rather than the Constitution, it isn’t even entirely clear that, even if he did assume a journalistic privilege, it would arise not only under the Convention but also under the Constitution.

3. Fennelly J’s treatment of the High Court judgment
The main event in Fennelly J’s judgment is his treatment of the decision in the High Court. He agreed with the High Court’s opprobrium for the journalists’ actions in destroying the letter which could have identified their source. At paragraph 60, he said

Following an extensive examination of the case-law of the European Court of Human Rights, the High Court expressed the view that the exercise of deciding between competing interests “in a democratic society based on the rule of law is reserved to courts established by law for that purpose.” That, it seems to me, is a correct and unexceptionable principle. … The High Court correctly said that the appellants had “cast themselves as the adjudicators of the proper balance to be struck between the rights and interests of concerned.” The courts cannot and should not abdicate their responsibility to decide when a journalist is obliged to disclose his or her source. The unilateral decision of a journalist to destroy evidence with intent to deprive the courts of jurisdiction is, as the High Court has held, designed to subvert the rule of law. The Courts cannot shirk their duty to penalise journalists who refuse to answer questions legitimately and lawfully put to them. …

And then, at paragraph 63, he reiterated

I do not disagree with the language used by the High Court in reference to the deliberate destruction by the appellants of the very documents that were at the core of the enquiry. Nonetheless, I have to accept that the issue is not whether that act was a wrongful one and deserving of the opprobrium applied to it by the High Court, but the narrower question of whether, in circumstances where the documents no longer exist, there is a logical or causal link between that act and the order made. It does not appear to me that there is. The order now to be made has to be justified by the situation as it now exists and not by the need to mark disapproval of the unquestionably “reprehensible conduct” of the appellants. For the same reason, I do not think that the High Court was correct in reaching the conclusion that the “destruction of these documents by the defendants is a relevant consideration to which great weight must be given in striking the correct balance between the rights and interests at issue on this application.”

However, even though he approved of this language, he nevertheless reversed their conclusion; at paragraphs 68-70, he held:

Looking at the High Court judgment as a whole, I have come to the conclusion that the great weight which it attached to the reprehensible conduct of the appellants in destroying documents led it to adopt an erroneous approach to the balancing exercise.

According to the reasoning of the European Court in Goodwin, an order compelling the appellants to answer questions for the purpose of identifying their source could only be “justified by an overriding requirement in the public interest.” Once the High Court had devalued the journalistic privilege so severely, the balance was clearly not properly struck. On the other side, I find it very difficult to discern any sufficiently clear benefit to the Tribunal from any answers to the questions they wish to pose to justify the making of the order.

I would, therefore, allow the appeal and substitute an order dismissing the Tribunal’s application.

In other words, he took the view that the interests on both sides were not very strong, and that, in balancing two weak cases, the journalists’ position was not quite as untenable as the High Court said it was, and that this was sufficient to allow the appeal. This is a very narrow basis on which to do so, and certainly does not amount to stirring victory for press freedom, whatever the NUJ might say.

Moreover, it doesn’t seem to me that the journalists’ interests are as weak as Kelly J in High Court and Fennelly J in the Supreme Court suggested. If the journalists could indeed assert a privilege against production of the letter, then it was theirs to do with as they please, and its destruction is entirely neutral as to the existence or strength of the privilege. Of course, if they could not assert the privilege, then it is at this point that the destruction of the letter becomes an issue, and they must take the consequences of being unable to produce it. Either way, proceeding as the two Courts did was to put the cart before the horse: the analysis should have commenced from the existence of the privilege rather than the destruction of the letter. Had it done, the Courts may have concluded that the jounalists’ interests were stronger than they held they were.

4. The nature of journalist source privilege
Fennelly J didn’t find much aid in the decision of the US Supreme Court in Branzburg v Hayes 408 US 665 (1972), and on the question of whether the privilege inheres in the source or the journalist, he commented at paragraph 67

… There has been some discussion in the United States of theories of privilege: is it there to protect the source or the journalist? I do not find any such notion in the European case-law, which seems to proceed on a functional theory: is there a pressing social need for the imposition of the restriction?

This is unfortunate, as it dodges a very important question. More than that, his frequent references to “balancing” and his retreat here to the “functional theory” reinforce the point made above that he seems to have been careful to come to his conclusion without expressly articulating any journalistic privilege at all. Nevertheless, a conclusion on the issue might be extracted from his approach: he relied for his approach and conclusion on the ECtHR caselaw concerning Article 10 of the ECHR, which sees media freedom as a crucial aspect of Article 10, and which therefore protects the journalists in the assertion of the privilege (all of the Article 10 cases have concerned the journalists, none have concerned sources). Although he did not wish to come to a conclusion on this issue, by taking what he termed the ECtHR’s “functional theory”, he must be taken to have endorsed that theory’s foundation in the protection of the journalists rather than their sources. But this is an inference, and the care with which Fennelly J avoided affirming other aspects of the privilege, whilst holding in favour of the journalists, recalls Powell J’s swing vote in Branzburg v Hayes.

5. Conclusion
In the end, therefore, whilst many claims are being made for this judgment, it is actually a very narrow decision: whilst the journalists in fact won, on my very quick initial appraisal, it seems to me that it does not establish a journalistic privilege as a matter of Irish law. So, in answer to the question posed in the title to this post, although this is an important decision, Irish law does not yet unequivocally recognise a journalist source privilege.

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