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 »

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.

It is said that patience is a virtue. It seems that the Supreme Court is determined to make us all virtuous. As we eagerly await their decision in the appeal from the decision of the High Court in Mahon v Keena [2007] IEHC 348 (23 October 2007), it appears we shall have to hold our souls in patience for a while longer. (I think Ambrose Bierce got it right in the wonderfully acerbic Devil’s Dictionary when he defined “patience” as a “minor form of despair, disguised as a virtue”). From today’s Irish Times:

No ruling yet on journalists’ appeal

Mary Carolan

The Supreme Court may rule next month or in the autumn on the 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. The questions relate to the source of an article about financial payments to former taoiseach Bertie Ahern.

The two-day appeal concluded before a five-judge Supreme Court last December, when judgment was reserved. Legislation requires that it be listed for review at regular intervals. The Chief Justice, Mr Justice John Murray yesterday further listed the matter for July 31st, the last day of the existing law term. Judgment may or may not be given on that date. …

In fact, it is a bumper edition of the paper, so far as the issues of interest on this blog are concerned:

Paisley may lose salary over silence on source
Ian Paisley jnr could be stripped of his MLA’s salary for refusing to comply with a High Court order to reveal a source, it emerged yesterday. …

PSNI action ‘counterproductive’
The actions of the PSNI Chief Constable in seeking to force a Northern Ireland journalist to hand over her notes and other materials relating to the Real IRA are counterproductive, a senior counsel has told a Belfast court. …

Newspaper report on contract ‘a lie’, Leech tells court
Communications consultant Monica Leech told the High Court yesterday she has spent 4½ years trying to clear her name of false allegations that she had an affair with a government minister. …

Jörges hands over the Charter to Reding (Photo: EUobserver)

On 25 May 25 2009, 48 editors-in-chief and leading journalists from 19 countries adopted and signed the European Charter on Freedom of the Press in Hamburg. In ten articles, the Charter formulates principles for the freedom of the press from government interference. Yesterday, the Charter was presented to the EU Commissioner for the Information Society and Media (hat tip: European Media Blog; see EU press relase).

From the EUobserver:

European press freedom charter launched

In an effort to counter increasing worries about infringement of press freedom by governments in Europe, both within the EU and beyond, the editor-in-chief of Germany’s weekly Stern magazine [Hans-Ulrich Jörges], together with EU media commissioner Viviane Reding on Tuesday (9 June) celebrated the launch of the European Charter on Freedom of the Press … In March, the Open Society Institute’s media programme – a pressure group focussing on media freedom in emerging democracies – criticised the European Commission in a report that argued that broadcasting across Europe, particularly in the east but also in Italy, is undergoing a “counter-reformation” – a backsliding towards overt political control after the post-Cold War period, when leaders relaxed their grip on TV and radio. … The European Commission came in for criticism for not holding new EU member states to account after promises concerning media freedom were made ahead of accession. …

The European Charter on Freedom of the Press provides: Read the rest of this entry »

Journalists’ source privilege is in the air. In the US, the House of Representatives has recently passed a (not particularly readable) Bill recognising a journalists’ source privilege (the Free Flow of Information Act of 2009), and it has been introduced into the Senate. In the UK, a prosecution of a local newspaper journalist and the police source who “leaked” stories to her was recently dismissed (indeed, a similar case against a member of parliament will also not proceed, though another is still pending).

On a judicial level, the Trial Chamber of the Special Court for Sierra Leone (SCCL) (pdf) (noted on the CPJ blog), relying on the earlier decision of the Appeals Chamber of the International Criminal Tribunal for the Former Yugoslavia (ICTY) in Prosecutor v Bradjanin and Talic (11 December 2002), held that a Liberian journalist did not have to divulge the names of those who facilitated his access to a war zone. In Sanoma Uitgevers BV v the Netherlands Application no 38224/03 (31 March 2009) (noted in my previous post), building on its seminal and hugely influential decision in Goodwin v UK Application no 17488/90, [1996] ECHR 16 (27 March 1996), the European Court of Human Rights (ECHR) explored the limits of such a privilege.

Moreover, in Ireland and Canada, cases are pending in both countries’ Supreme Courts on the question of the nature and extent of journalists’ source privilege. So, it’s a good time to try to clarify some of the important issues which arise. In particular, a key question, often overlooked, is whether the privilege inheres in the journalist or the source. For my own part, I would say that privileges inhere in both the journalist and the source, that they are two different privileges, and that they arise and are lost in very different ways.

Read the rest of this entry »

In my previous post, I outlined some of the international instruments which provide for the protection of journalists’ sources. The leading court decision on the issue is the judgment of the European Court of Human Rights (ECHR) in the seminal and hugely influential Goodwin v UK Application no 17488/90, [1996] ECHR 16 (27 March 1996). And in Sanoma Uitgevers BV v the Netherlands Application no 38224/03 (31 March 2009), the Court reaffirmed Goodwin but set out its limits.

Goodwin turned on the interpretation of Section 10 of the Contempt of Court Act, 1981, which provides:

No court may require a person to disclose, nor is any person guilty of contempt of court for refusing to disclose, the source of information contained in a publication for which he is responsible, unless it be established to the satisfaction of the court that disclosure is necessary in the interests of justice or national security or for the prevention of disorder or crime.

In X Ltd v Morgan-Grampian (Publishers) Ltd [1991] 1 AC 1 (HL), the House of Lords held that it was “in the interests of justice” to order a trainee journalist to disclose the identity of a source. However, in Goodwin the ECHR held that this infringed the journalists’ right to freedom of expression in Article 10 of the European Convention on Human Rights. Read the rest of this entry »

World Press Freedom Day is an appropriate day on which to consider the protection of journalists’ sources on the international plane. It is a protection that is embodied in many international instruments. For example, the Organisation for Security and Co-operation in Europe (OSCE) has always had media freedom at the heart of its operations. Hence, in the Concluding Document of its 1986 Vienna meeting (pdf), principle 40 of the principles relating to Co-operation in Humanitarian and Other Fields commits the member states to

… ensure that, in pursuing this activity, journalists, including those representing media from other participating States, are free to seek access to and maintain contacts with public and private sources of information and that their need for professional confidentiality is respected.

Similarly, principle 3(d) of the Council of Europe Resolution on Journalistic Freedoms and Human Rights (adopted at the 4th European Ministerial Conference on Mass Media Policy, Prague, 7-8 December 1994) calls for

the protection of the confidentiality of the sources used by journalists.

Read the rest of this entry »

The First Amendment to the US Constitution provides that “Congress shall make no law … abridging the freedom of speech, or of the press; …”. Does that and similar declarations of press freedom extend to the blogosphere? The question is made more difficult in the context of Article 10 of the European Convention on Human Rights, which is a general protection of freedom of expression which contains no direct reference to the media at all, though the European Court of Human Rights has long extolled the “watchdog” role of the press as of especial value in Article 10 jurisprudence. The question is made more difficult still in the context of the Treaties establishing the European Union, where speech issues arise not as elements of a straightforward freedom of expression guarantee but in the context of the fundamental economic rights upon which the EU is founded, but even there the European Court of Justice has long acknowledged the importance of freedom of expression especially as regards the media. Over on contentandcarrier, Hans Peter Lehofer has spotted some interesting asides in recent judgments of the European Court of Justice and the European Court of Human Rights, signalling how those courts may be about to build on these developments and expand press freedom to non-traditional media, such as the blogosphere.

First in time is the ECJ decision in Case C-73/07 Tietosuojavaltuutettu v Satakunnan Markkinapörssi Oy and Satamedia Oy (noted here by Daithí), which concerned the distribution of information by subscription to a text messaging service. The ECJ commented that the medium which is used to transmit data, whether it be paper or radio or the internet, is not determinative as to whether an activity is undertaken ‘solely for journalistic purposes’, so that publications may be classified as ‘journalistic activities’

if their object is the disclosure to the public of information, opinions or ideas, irrespective of the medium which is used to transmit them. They are not limited to media undertakings and may be undertaken for profit-making purposes.

Then there is the more recent ECHR decision of Application no. 37374/05 Társaság a Szabadságjogokért v Hungary (noted here on the ECHR blog), in which the applicant – TASZ – was the Hungarian Civil Liberties Union. The ECHR commented that although the function of the press includes the creation of forums for public debate, the realisation of this function is not limited to the media. Indeed, the Court has repeatedly recognised civil society’s important contribution to the discussion of public affairs. Hence, since TASZ was an association involved in human rights litigation, it could

therefore be characterised, like the press, as a social “watchdog” … In these circumstances, the Court is satisfied that its activities warrant similar Convention protection to that afforded to the press.

On the basis of these quotes, he concludes:

Summing it up: ECJ and ECHR have clearly moved to grant traditional press freedoms not only to traditional media, but also to SMS-information services (and, if implicitly, bloggers!) and NGOs engaged in “the creation of forums for public debate”.

I like that parenthesis, and I think he is quite right (in the ECJ context, Daithí had already made the connection). The question of the extent to which bloggers are journalists and are entitled to extended legal protections analogous to any which the mainstream media may enjoy is a very important one. To take one example. In the very near future, I’m going to return to the question of journalists’ source privilege. Where it exits, should bloggers also have the benefit of it? Hans Peter Lehofer’s analysis suggests that, at least so far as the ECHR and the ECJ are concerned, the answer that is beginning to emerge in principle is: yes.