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Summer 2009 Bulletin
International
Irish Supreme Court Upholds Journalists’ Right to Keep Source Confidential
The Supreme Court of Ireland has unanimously upheld the right of two Irish Times journalists to refuse to appear before a government tribunal and reveal their source for a 2006 report on a government corruption investigation.
The July 31, 2009 ruling in Mahon Tribunal v. Keena, [2009] IESC 64 (S.C. Ireland 2009) overturned a lower court ruling that said, in consideration of the journalists’ “outstanding and … flagrant disregard of the rule of law,” Times reporter Colm Keena and editor Geraldine Kennedy could be compelled to appear before the tribunal and answer questions about the source of a letter that was anonymously sent to the newspaper. Instead, in an opinion by Justice Nial Fennelly, the five-judge Supreme Court ruled that compelling the journalists’ testimony was not justified by “an overriding requirement in the public interest” as required by Irish law and the European Convention on Human Rights. Fennelly wrote that the lower court “devalued the journalistic privilege so severely” in its decision that it failed to strike the proper balance between the tribunal’s right to confidentiality in its investigation and the journalists’ right to protect their source.
The case arose out of a Sept. 21, 2006 Irish Times report that Ireland’s then-Taoiseach, or prime minister, Bertie Ahern, was the subject of an investigation for secretly taking payments of between 50,000 and 100,000 euros ($70,000 to $140,000) from business leaders when he was Ireland’s finance minister in the early 1990s. The Irish Times report was based on a confidential letter that the government tribunal investigating possible corruption sent to one of the businessmen targeted by the investigation.
An Aug. 1, 2009 Associated Press (AP) story reported that the scandal involving payments to Ahern – which he initially said were unrepaid “loans” – eventually led the tribunal to uncover a series of even larger payments made to Ahern at a time when he kept no bank accounts and “operated exclusively from cash kept in personal safes.” Ahern resigned in May 2008 after 11 years as Taoiseach.
According to Fennelly’s opinion, tribunal chairman Justice Alan Mahon sought to compel Keena and Kennedy to turn over the letter and disclose its source on Sept. 25, 2006. Keena and Kennedy, in response to Mahon’s order, said they had destroyed their copies of the letter, and in appearing before the tribunal declined to answer “any questions which in their view would give any assistance in identifying the source of the anonymous communication,” citing their professional duty to protect confidential sources. The opinion said the journalists also refused to say whether the letter was an original (with letter heading) or a copy, which might help investigators determine its source. The AP reported that Mahon said the Irish Times report led to suspicions that its staff were behind the leak, undermining the tribunal’s public credibility.
On Oct. 23, 2007, a three-judge panel of the High Court, an appeals court that sits below the Irish Supreme Court, ruled in favor of the tribunal and ordered Keena and Kennedy to appear before the tribunal and give testimony. The court called the journalist’s destruction of the letter “reprehensible” and explained that, because it had been destroyed, “the most that can be achieved” is for the journalists to be able to indicate, based on whether the letter bore a header from the tribunal itself, whether “as a matter of probability” the source was a member of the tribunal. “Beyond that the source will remain, as of course the source always intended, shrouded in impenetrable mystery with its anonymity safely beyond the reach of forensic inquiry.”
Fennelly, however, said the High Court’s logic was “difficult to follow.” Fennelly observed that the source would, “in all probability, have wished to disguise” the letter by using a photocopier or other device to mask the letter head if it had originated with the tribunal. “On the contrary hypothesis that it did not come from a Tribunal source, but was, as the High Court expressed it ‘shrouded in impenetrable mystery,’ it clearly would not be possible to justify the making of the order,” Fennelly wrote.
Fennelly continued, “if the apparent anonymity of the source weakens the [journalists’] case for resisting the order, it must correspondingly weaken the Tribunal’s case for obtaining it. If … the source was a person known to the journalist, it could, at the least, be argued that there was some concrete benefit to be obtained from the making of the order. Where the source is anonymous, the benefit is speculative at best.”
The Supreme Court ruled that the High Court had failed to identify a logical link between the newspaper’s destruction of the letter and the central issue – whether Irish and international law required them to reveal the source at all. The Supreme Court cited Article 40, section 6,1º of the Irish Constitution, which guarantees freedom of expression, as well as an earlier journalist’s privilege case, Goodwin v. United Kingdom, (1996) EHRR 123 (European Court of Human Rights 1996), in which the court recognized a “vital public interest in the protection of the … journalist’s source,” to support its ruling that the High Court failed to strike a proper balance between the public interest derived from compelling Keena and Kennedy to testify and the public interest in the journalists protecting their source.
According to the AP, Kennedy said the ruling was “a very good judgment for investigative journalism,” adding, “For the first time the right of journalists to protect their sources is enshrined in Irish law.” She and Keena had faced potential imprisonment if they continued to refuse to reveal the source, the AP reported.
According to The Irish Times on August 1, Séamus Dooley, Irish secretary for the National Union of Journalists, a British and Irish professional journalists’ union, said that although it was unfortunate that Kennedy and Keena had to go to the Supreme Court to defend a core journalistic value, the decision was a “victory for press freedom, for journalism and for common sense.”
– Patrick File
Silha Fellow and Bulletin Editor
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