Suzy must get the prize for popularising the best political coinage of the day, for – so far as I can see – it is she who has run with the name “Cowengate” for the sturm und drang surrounding satirical portraits of the Taoiseach (Prime Minister), Brian Cowen. In a piece of guerrilla artistry as ingenious as the coinage Suzy has popularised, caricatures of Mr Cowen were anonymously hung on the walls of the National Gallery of Ireland and the Royal Hibernian Academy. Once they were discovered, they were removed, but not before they had garnered sufficient publicity for RTÉ (Raidio Telefís Éireann, the national state broadcaster) to broadcast a story about them on the flagship 9:00pm television news programme.

It has been the occasion for lots of bad puns and some embarrassment on the part of the Taoiseach, the Gallery and the Academy, but in the ordinary course of things, the story should have blown over after about 48hours. However, things then took two turns for the worse. First, RTÉ apologised to Mr Cowen and his family or for any disrespect shown to the office of Taoiseach by their broadcast. Second, when the radio station Today fm covered the story, the Gardaí (the police) arrived at the station asking that an email with the artist’s details be handed over (.wav). Leaving the obvious jokes aside (because they have all been done better elsewhere), these two quite sinister developments raise some profound questions about freedom of expression in Ireland. Read the rest of this entry »

Ravel’s orchestration of Mussorgksy’s Pictures at an Exhibition, performed by the Philharmonia Orchestra conducted by Esa-Pekka Salonen at the BBC Proms in August 2006

This post is an addendum to Cowengate and Freedom of Expression (above). In the original version of that post, I had a paragraph of links to other coverage. Like Topsy, that paragraph growed and growed, so I’ve taken the list of links out of that post and put them here.
Read the rest of this entry »

Caption: Hey boss. I’m not sure our covert surveillance is real covert any more

In general, the public interest in the proper administration of justice requires that people called as witnesses before courts must answer all questions put to them, on pain of being held in contempt of court. However, the common law has recognised some exceptions, such as the privilege of the police to be able to refuse to identify their sources, or that of lawyers or doctors to refuse to answer questions about conversations with clients. In such cases, there is a countervailing public interest in favour of encouraging full disclosure between the parties to the relationship. The categories of relationship which attract such privilege are controversial; it has been claimed to cover the relationship between journalists and their sources, or that between priests and their penitents – some jurisdictions recognise these extensions, some don’t (in Ireland – exceptionally in both cases – the former is an open question, and the latter is recognised).

In the way of these things, I have come across two interesting contributions to the deabte about the nature of such evidential privileges. In the first, In re McE [2009] UKHL 15 (11 March 2009) (also here) the House of Lords (Lord Hope, Baroness Hale, Lord Carswell and Lord Neuberger for the majority; Lord Phillips dissenting) held that that the the Regulation of Investigatory Powers Act 2000 (RIPA) allows for covert surveillance of communications between lawyers and their clients, even where these are covered by legal professional privilege. The case has significant implications for the malign impact of RIPA upon privacy rights, but it also contains some important discussions of the nature of legal professional privilege.

First, Lord Hope and Baroness Hale (in the majority) treated legal professional privilege as a procedural and evidential matter, whereas Lord Phillips (dissenting) thought that it had went further and extended into a substantive fundamental right. Lord Nueberger (also in the majority) referred to the very closely connected “right of a person to consult a lawyer in private, and the right to legal professional privilege in connection with communications with one’s lawyer”. Lord Carswell (delivering the main speech for the majority) acknowledged that legal professional privilege is now being spoken of in terms of substantive rights, but did not feel it necessary to decide whether the evolution postulated by Lord Phillips (and, it seems, assumed by Lord Nueberger) had in fact taken place. This distinction matters: if legal professional privilege is seen in procedural evidential terms, it is easily displaced by a countervailing public interest; on the other hand, if it is seen as a substantive and fundamental human right, it is much harder to displace, except by express legislative enactment. In other words, the status, strength and limits of legal professional privilege as a privilege or a right are still being tested.

Second, there was much discussion of the principle that there is no privilege in iniquity, so that communications between a lawyer and client that are in furtherance of crime or fraud are not protected by legal professional privilege; but all were agreed that this applied to the privilege whether it is a procedural and evidential issue, or a matter of substantive right. In the Yale Law Journal Pocket Part (an online companion to the Yale Law Journal) Colin Miller (profile | blog) has just published a piece on evidential privileges which argues that all such privileges must serve competing interests which are not undercut by such crime-fraud exceptions; see Colin Miller “A Public Privilege” 118 Yale LJ Pocket Part 166 (2009) (mp3 podcast). On the nature of legal professional privilege (or, in US terms, attorney-client privilege) he says

… no privilege is an island, entire of itself, and, as the Supreme Court announced in Jaffee v. Redmond, all privileges must further both private interests and public ends. The attorney-client privilege is no exception. As the Supreme Court articulated in Upjohn Co. v. United States, the purpose of the privilege “is to encourage full and frank communication between attorneys and their clients and thereby promote broader public interests in the observance of law and administration of justice.” Indeed, the core premise of the privilege is “that sound legal advice or advocacy serves public ends.”

He then argues that these public ends are bolstered by the crime-fraud exception. The aim of the piece is to reason by analogy from that conclusion to the context of a statutory journalist source privilege (or, in US terms, “shield law”) to support the argument that the latter statutory privilege should also be subject to the crime-fraud exception, despite a recent state court decision to the contrary.

From an Irish perspective, we must await the decision of the Supreme Court on the existence (and, if it exists, the extent) of a journalists source privilege, so we must put that aspect of Miller’s analysis aside for a while. Similarly, not being blessed or cursed (yet?) with an equivalent of RIPA, we can also (and quite happily) put that aspect of the decision of the House of Lords in In re McE to one side. What remains in both cases is a revealing discussion of the nature and limits of legal professional privilege. For my own part, I would be slow to make too much of the analogy from one form of evidential privilege to another. If legal professional privilege is evolving into a substantive right, then its contours will be informed by considerations that do not necessarily apply in other contexts – in particular, arguments that it can be displaced simply by countervailing public interests (which might be sufficient in the context of other privileges) will be much harder to sustain. Again, it is perfectly plausible that the rationale in favour of the crime-fraud exception could be much stronger in the context of one privilege than of another.

With pending decisions relating to the protection of journalists’ sources in the Supreme Courts in Ireland and Canada, to say nothing of a new movie inspired by the travails of Judith Miller (pictured above left), a student note in the current Columbia Law Review (December 2008, Vol 108, No 8,) is very timely (notwithstanding Ghandi’s quip, above). Here’s the abstract:

David Abramowicz “Calculating the Public Interest in Protecting Journalists’ Confidential Sources”

Most federal circuits recognize a qualified journalist’s privilege not to identify a confidential source. In shielding journalists from some subpoenas, those courts recognize, at least implicitly, a public interest in newsgathering sufficient to overcome its interest in obtaining evidence. But courts pay little attention to the nature or scope of the newsgathering interest. They treat it as fixed, an approach that overlooks the reality that certain uses of confidential sources benefit the public more than others. Some judges and commentators have called for a flexible approach toward measuring the newsgathering interest, but their proposals, which rely on an analysis of the value of a confidential source’s information, would yield unpredictable results. These proposals have not gained traction.

This Note identifies, for the first time, a procedural analysis, based on guidelines recently championed by journalists and media organizations, that can be used to calculate the newsgathering interest. The new guidelines govern the process by which journalists obtain and report information from confidential sources. The Note argues that courts should afford more or less weight to the newsgathering interest based on whether a journalist’s use of information from a confidential source adhered to the guidelines. This approach would align the journalist’s privilege with the public interest without requiring a subjective assessment of information’s news value. Furthermore, focusing the relevant inquiry on the process by which information flowed from a confidential source to the public would solve the problem of defining who is a “journalist” entitled to invoke the privilege.

On the general issue of newsgatherers’ public interest responsibilities, see also Janice Brabyn “Protection Against Judicially Compelled Disclosure of the Identity of News Gatherers’ Confidential Sources in Common Law Jurisdictions” (2006) 69 Modern Law Review 895 (SSRN). And on that last question of who, exactly, is a journalist, there is a growing literature on the extent to which bloggers (self-describing as “citizen journalists” in this context) can properly be described as journalists (Concurring Opinions | EFF | Findlaw); see, eg, Anne M. Macrander “Bloggers as Newsmen: Expanding the Testimonial Privilege” (2008) 88 Boston University Law Review 1075 (BULR (pdf) | SSRN).

Not only will the Irish Supreme Court have the opportunity on the appeal in Mahon v Keena [2007] IEHC 348 (23 October 2007) (discussed here and here by Daithí) to discuss the constitutional protections, if any, for journalists’ sources, but I learn from The Court that the Supreme Court of Canada will also have a similar opportunity this term on the appeal in R v The National Post 2008 ONCA 139 (CanLII):

When does freedom of the press cede to investigating crime?: R. v. National Post

The Supreme Court is set to decide whether confidential sources for newspaper reporters are entitled to a claim of privilege similar to that of confidential police informants. The case of National Post v. R. … will settle a long-standing grey area in Canadian media law, but to get there, the SCC will be asked to mediate between the conflicting public interests of investigating crime on the one hand, and the freedom of the press on the other. …

The Canadian case turns on whether a journalist can assert privilege over a bank document received from a confidential source which disclosed highly incriminating evidence of a conflict of interest by Prime Minister Jean Chrétien in a property scandal which the bank and M Chrétien claimed was fabricated. In R v McClure 2001 SCC 14 (CanLII), (2001) 151 CCC (3d) 321 the Supreme Court said that the confidentiality of the relationship between a journalist and the journalist’s source may be protected on a case-by-case basis. However, in applying the test set out in McClure, the Ontario Court of Appeal held against the privilege in The National Post case; in particular, on the question of whether the injury to the relationship between journalist and source from the disclosure of the communications is greater than the benefit gained from the correct disposal of the litigation, the Court focussed on

the fact that his document was potentially fabricated to stir up controversy surrounding the Prime Minister of Canada, … [and] found that the benefits of getting to the truth were ‘overwhelming.’ The interest in protecting confidential sources, meanwhile was ‘attenuated’ by the fact that in this case the media was “shielding a potential wrongdoer from prosecution for a serious crime.”

The outcomes of the appeals will make for an interesting pair of cases, not just in relation to the similarities of fact but in particular in relation to the law on journalists’ sources.