Strasbourg is a beautiful city: it possesses a magnificent gothic cathedral; the Grande île is a UNESCO World Heritage site; and it is home to many European institutions, including the the European Court of Human Rights (ECHR, pictured left). It is a city with which Geraldine Kennedy, the Editor of the Irish Times, and Colm Keena, that paper’s Public Affairs Correspondent, will become very familiar, as they bring an exceedingly important case to the ECHR.

In Mahon Tribunal v Keena (No 1) [2009] 2 ILRM 373, [2009] IESC 64 (31 July 2009), the Supreme Court held that the Irish Times would not be compelled to disclose the source of a leaked Tribunal document which it had destroyed rather than produce to the Tribunal. Reversing the High Court ([2007] IEHC 348 (23 October 2007)), Fennelly J for a unanimous Supreme Court held:

68. 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.

69. According to the reasoning of the European Court in Goodwin [v United Kingdom 17488/90, (1996) 22 EHRR 123, [1996] ECHR 16 (27 March 1996)], 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.

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

However, the destruction of the document returned to haunt the Irish Times. In Mahon Tribunal v Keena (No 2) [2009] IESC 78 (26 November 2009) (also here), Murray CJ for the Supreme Court held that this deliberate act of destruction of evidence deprived the Tribunal of the possibility of conducting any meaningful inquiry into the source of the leaked letter, and such as to deprive the Irish Times of their normal expectation that the Court would, in the exercise of its discretion, award costs in their favour. As a consequence, the Court ordered that the Tribunal were entitled to recover from the Irish Times the costs of the action in both the High Court and the Supreme Court.

This struck me at the time as a bizarre conclusion that undermined the original decision that the journalists did not have to answer the Tribunal’s questions. If the journalists had a privilege to with-hold the document and decline to answer the questions, then they had the privilege, and it doesn’t matter what they did with the document. Moreover, I argued that the costs order infringed Article 10 of the European Convention on Human Rights. I am therefore delighted to learn that the Irish Times is to challenge it in the ECHR:

‘Irish Times’ applies to ECHR over costs

THE IRISH Times has applied to the European Court of Human Rights concerning the award of costs against it by the Supreme Court, despite it winning its case against the Mahon tribunal … on the grounds that a number of the rights of Kennedy and Keena have been violated, in particular their rights under article 6 of the European Convention on Human Rights, guaranteeing a fair trial, and Article 10, guaranteeing freedom of expression. …

They point to the “chilling effect” of such an award of costs on the exercise of press freedom, pointing out that the ECHR has already ruled that an order to disclose sources cannot be compatible with article 10 unless it is justified by “an overriding requirement of public interest”.

The Court will first determine whether the application is admissible. If it is declared inadmissible, that decision is final, but I would be shocked if the case failed at this stage; since the case is not manifestly ill founded. If it is declared admissible, the Court will encourage the parties to reach a friendly settlement. This is, to say the least, unlikely, so the Court will then proceed to a public hearing to consider the application “on the merits”, that is to say, to determine whether there has been a violation of the Convention. This whole process will take several years. And Kennedy and Keena will no doubt have to visit Strasbourg several times. But they should be satisfied with their visits, not only as tourists, but ultimately as litigants as well.

If you like this post, please click on this link to pass it on. Thanks!

Hide Sites

The above image is the front page of the first ever Times newspaper, first published as the Universal Daily Register on 1 January 1785. From today’s Times Online:

The Times celebrates its 225th birthday

How a former bankrupt with a big idea started a feeble rumbling that became The Thunderer

On this day 225 years ago the very first issue of a newspaper that would soon be renamed The Times appeared on the streets of London. … its beginnings were, to put it mildly, inauspicious … Yet the paper did survive, and prosper, thanks in part to the energy and vision of its creator, John Walter, a former coal merchant, entrepreneur and Lloyd’s underwriter who had declared himself bankrupt after he was ruined by a combination of the American War of Independence and a Jamaican hurricane. …

In 1789 he was put on trial for libelling the Duke of Clarence and the Duke of Cumberland. He refused to reveal his sources, and was sentenced to a year in Newgate Prison, fined £50 and ordered to stand in the pillory at Charing Cross for an hour. This last part of the sentence was lifted, although editors of The Times have occasionally been pilloried since. Once his sentence was completed, he started another, following a successful libel action by the Prince of Wales.

If you like this post, please click on this link to pass it on. Thanks!

Hide Sites

In Mahon Tribunal v Keena [2009] IESC 64 (31 July 2009) (also here (pdf) (to which I will refer as Mahon Tribunal v Keena (No 1)) the Irish Times successfully resisted an attempt by the Mahon Tribunal to compel the Editor and Public Affairs Correspondent of the Irish Times to disclose the source of a leaked Tribunal document. However, in Mahon Tribunal v Keena [2009] IESC 78 (26 November 2009) (to which I will refer as Mahon Tribunal v Keena (No 2)), the Court held that the journalists should pay the Tribunal’s costs of more than €600,000.

In yesterday’s post, I argued that this was illogical: if the journalists had a privilege to with-hold the document and decline to answer the questions, then they had the privilege, and it doesn’t matter what they did with the document, and taking objection to its destruction by the journalists is neither here nor there. However, even if this might provide some justification for some punishment of the journalists, nevertheless, the European Court of Human Rights is very likely hold that this punishment is inconsistent with Article 10 of the European Convention on Human Rights. A crucial case in this respect is Cumpana and Mazare v Romania 33348/96, (2005) 41 EHRR 14, [2004] ECHR 692 (17 December 2004), where the Court held that although some penalty would have been appropriate, disproportionately severe sanctions infringed the applicant journalists’ Article 10 rights. Read the rest of this entry »

If you like this post, please click on this link to pass it on. Thanks!

Hide Sites

In a classic example of giving with one hand and taking away with the other, the Supreme Court first held that the Irish Times could assert a privilege to decline to answer questions from a Tribunal, but then ordered the paper to pay the Tribunal’s costs. This is, to say the least, a curious and illogical decision, and it is very doubtful whether the European Court of Human Rights would find it compatible with Article 10 of the European Convention on Human Rights.

According to a report in yesterday’s Sunday Tribune (see also Saturday’s Irish Times and the BBC News website) the Police Service of Northern Ireland (PSNI) have been ordered to pay 75% of the costs incurred by Suzanne Breen, Northern Editor of the Sunday Tribune, in successfully resisting the PSNI’s attempt to compel her to disclose her sources. The general rule, subject to the court’s discretion, is that costs follow the event, so Breen might reasonably have expected that the PSNI would have to pay all of her costs, but she seems to be satisfied with the decision that they should pay 75%.

Recall that in Mahon Tribunal v Keena [2009] IESC 64 (31 July 2009) (also here (pdf) (to which I will refer as Mahon Tribunal v Keena (No 1)) the Irish Times similarly resisted an attempt by the Mahon Tribunal to compel the newspaper to disclose the source of a leaked Tribunal document. Again, since costs follow the event (see Order 99 Rule 1 RSC), the Irish Times might reasonably have expected that the Tribunal would have to pay all of their costs; like Breen, they might well have been satisfied with a decision that the Tribunal should pay 75%; indeed, they have accepted a decision that both parties bear their own costs. However, last week, the Supreme Court did not choose any of these options, but instead ordered that the Irish Times had to pay the Tribunal’s costs, which have been estimated at more than €600,000.

It is peculiar that the Court should punish an action that it held was justified by journalist source privilege. In this post, I will look at the logical basis for this decision. In tomorrow’s post, I will look at the issues which arise under Article 10 of the European Convention on Human Rights. Read the rest of this entry »

If you like this post, please click on this link to pass it on. Thanks!

Hide Sites

In today’s Irish Times obituary of Robert Novak (pictured left, on the cover of his autobiography), there is an excellent summary of the Judith Miller affair. From the obituary (with added links):

Conservative US columnist revealed identity of CIA officer

… Six years ago, he crowned his long record of controversial disclosures by revealing the name and position of Valerie Plame, a clandestine CIA officer involved with intelligence on weapons of mass destruction. Her husband, Joseph Wilson, a former US diplomat, had enraged the Bush administration by publicly questioning the White House’s misuse of such intelligence to justify its invasion of Iraq.

Publishing Plame’s name broke federal law and there was a ferocious hunt for Novak’s source, which he stoutly refused to name. This witch-hunt eventually brought prison sentences for a New York Times reporter, Judith Miller, and for Lewis Libby, the chief of staff of former US vice-president Dick Cheney.

Under continuing pressure, Novak told all to a federal grand jury, naming the deputy secretary of state, Richard Armitage, and US president George W Bush’s political adviser Karl Rove as his sources. He justified his action on the basis that both officials had already identified themselves. No one else was prosecuted, but it was not Novak’s finest hour. …

There are also excellent obits in the Economist, New York Times (also here), Time, Wall Street Journal and on the BBC website. Thus ends another chapter in a fascinating case study on journalist source privilege: both Miller and Novak published stories with Libby as the main source, but there the similarities end: although Miller declined to name her source until after she had served 85 days in jail and Libby had given her permission to do, Novak did eventually name Libby without going to jail and without his permission. It graphically illustrates the difference between conceiving of the privilege as attaching to the journalist (as Miller did in her assertion of the privilege even after Libby had outed himself and given her permission to name him) and conceiving of it as attaching to the source (as Novak did by claiming that he was no longer bound by it after Libby had outed himself). Despite what the Supreme Court said in Mahon Tribunal v Keena [2009] IESC 64 (31 July 2009) (also here (pdf)) therefore an important distinction which can make a great deal of difference on the facts of any given case, and the sooner the law recognises both species of the privilege, the better.

If you like this post, please click on this link to pass it on. Thanks!

Hide Sites

Marie 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. Read the rest of this entry »

If you like this post, please click on this link to pass it on. Thanks!

Hide Sites

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. Read the rest of this entry »

If you like this post, please click on this link to pass it on. Thanks!

Hide Sites

The Supreme Court has held that two Irish Times journalists can assert a privilege to refuse to answer questions about their sources, reversing the High Court decision in Mahon v Keena [2007] IEHC 348 (23 October 2007). From the Irish Times breaking news website:

Court upholds Mahon appeal

The Supreme Court has upheld an appeal by Irish Times editor Geraldine Kennedy and public affairs correspondent Colm Keena against a court order requiring them to answer questions from the Mahon tribunal about the source of an article about former taoiseach Bertie Ahern. …

Revised: The decision is also noted by Cian on Blurred Keys and is now avaialble as Mahon Tribunal v Keena [2009] IESC 64 (31 July 2009); it is also here (pdf) on the Irish Times website.

See also the Belfast decision in the case of Suzanne Breen and a decision of the Supreme Court of Western Australia earlier this week, both reaching similar conclusions.

If you like this post, please click on this link to pass it on. Thanks!

Hide Sites