Irish High Court Hands Down Important Ruling On Journalists’ Right To Protect Sources

From our friend Eoin O’Dell at the blog cearta.ie, news of a major decision regarding the right of a reporter to protect his sources. The case is Mahon Tribunal -v- Keena & anor, 2009] IESC 64.

In its analysis the Supreme Court said,

29. The appellants did not contest the power of the Tribunal to make an order pursuant to section 4 of the Tribunals of Inquiry (Evidence) (Amendment) Act, 1979, as interpreted by this court in Kiberd v. Hamilton, cited above. Mr Donal O’Donnell, Senior Counsel, for the appellant’s submitted that Clause J (5) of the Terms of Reference of the Tribunal, being expressed in negative form, did not apply. He also argued that the Tribunal was engaging in a “leak inquiry” which would not assist it in enquiring into matter the subject matter of its Terms of Reference. The appellants argued in their written submissions that the documents at issue are not confidential and the Tribunal did not have any authority to create the confidentiality for which it contends. They relied on Mahon v. Post Publications Limited [2007] 3 I.R. 338.

30. The principal, indeed almost the exclusive, focus of Mr O’Donnell’s submissions was a critique of the balance struck by the High Court between the rights of the Tribunal and of the appellants. He said that, by virtue of the provisions of the European Convention on Human Rights Act, 2003, Article 10 of the Convention applied, respectively, to the Tribunal as an “organ of the State” and to the High Court when interpreting either the common law or relevant statutes.

31. Following a comprehensive survey of the case-law of the European Court of Human Rights, he submitted that the balance has almost always been struck by that court in favour of protection of journalists’ sources. Extraordinarily strong countervailing circumstances are required before a journalist can be obliged to disclose sources.

32. Mr O’Donnell criticised what he called the “fallacious logic” of the High Court judgment. In effect, he said, the judgment requires questions to be asked only in circumstances where they cannot achieve the object of identifying the source. The view of the High Court was that the Tribunal could require questions to be answered for the purpose of exculpating the Tribunal itself and not to enable the actual source to be identified. The High Court, he argued, was, in particular, led into error by reason of its extremely critical views regarding the destruction by the appellants of the documents. For that reason, the High Court had erroneously taken the view that the journalists’ privilege against disclosure had almost no weight.

33. Mr Michael Collins, Senior Counsel, for the Tribunal, accepted the link between the fundamental right of freedom of expression, guaranteed by Article 10 of the Convention, the privilege of journalists with regard to their sources and the need to recognise the “chilling effect” of an order for disclosure of sources. He referred to the trust and confidence which exists between the journalist and the source but argued that this is significantly weakened and the privilege would be entitled to very slight weight when the source is anonymous.

Mr Collins laid particular emphasis on the right of Tribunals generally to carry on preliminary investigations in private and to protect the confidentiality of persons cooperating with it in its private phase. The Tribunal has a legitimate interest, in Convention terms, in seeking to identify the source of a leak of confidential information.

Mr Collins referred to case-law in the United States, in particular the decision of the United States Supreme Court in Branzburg v Hayes, discussed later, declining First Amendment protection to journalists refusing to give evidence before a grand jury.

Confidentiality of information; Power of Tribunal

34. The appellants do not seriously contest the power of the Tribunal to inquire into the unauthorised disclosure of its confidential information. The decision of this Court in Kiberd v Hamilton, cited above is conclusive on the point. It concerned an inquiry by Mr Justice Hamilton as Chairman and sole member of the Tribunals of Inquiry into the Beef Processing Industry into an unauthorised disclosure and publication in a newspaper of information confidential to the Tribunal. The newspaper contested the power of the Tribunal. Blayney J delivered the unanimous judgment of this Court. In reliance on the judgment of this Court in State (Lynch) v Cooney [1982] I.R. 337, he held that what had to be considered was, “firstly, whether the Tribunal’s opinion that the making of the order was necessary for the purpose of its functions was bona fide held, secondly, whether that opinion was supported by the facts, and finally, whether it can be said of it that it was not unreasonable.” The learned judge rejected the challenge to the jurisdiction of the Tribunal, noted that it was not contested that its opinion was bona fide held, and concluded that there were grounds to support the view of the Tribunal which was not unreasonable.

35. It is notable that the central issue of concern for the Tribunal in that case was the fear that, if people invited to cooperate with the Tribunal believed that information furnished confidentially by them would appear in the press, there was a real danger that witnesses would be dissuaded from coming forward with material relevant to the Tribunal’s inquiry. Kiberd v Hamilton, therefore, constitutes sufficient authority for the proposition that the Tribunal has power to investigate unauthorised disclosure of its confidential information. However, I am also satisfied that the High Court was correct to hold that Clause J (5) of the Terms of Reference of the Tribunal adopted by Resolution of Dáil Éireann passed on 17th November, 2004 confirmed the existence of that power.

It is not necessary to consider the English case of Norwich Pharmacal v Customs and Excise Commissioners [1974] AC 133, which was discussed by counsel for the appellants at the hearing of the appeal, although that case and a number of cases which followed confirm the existence of a power in the courts to order disclosure of confidential information which has come into the possession even of innocent parties.

36. Both in the High Court and in argument before this Court, reference was made to the case of Mahon v Post Publications, cited above. That case concerned enforcement of the confidentiality of documents circulated in briefs to persons affected by a matter to be inquired into in public by the Tribunal. This court, by a majority, upheld the decision in the High Court (Kelly J) dismissing the application of the Tribunal to enforce confidentiality in those circumstances. In the course of my own judgment for the majority, I said:

“Clearly, a matter which I wish to make perfectly clear, none of this concerns the confidentiality of the entirely private proceedings of the Tribunal in its investigative phase, conducted prior to the decision to go on to public hearings and to circulate briefs. That is the ordinary right to confidentiality that any person or body possesses in respect of his, her or its own internal activities. That type of confidentiality has already been dealt with by this Court in O’Callaghan v. Mahon … [2006] 2 I.R. 32. ……Nobody, whether in or out of the media, has the right to invade or trespass upon the internal workings of any individual or organisation.”

37. The communications between the Tribunal and Mr McKenna, which gave rise to the publication of Mr Keena’s article, took place during the private, investigative phase of the work of the Tribunal. The Tribunal had not decided, at that stage, whether it would hold any public hearings about the payment of monies to Mr Bertie Ahern. Ms Kennedy herself, if unintentionally, highlighted the essential confidentiality of the information by justifying publication precisely for the reason that the matter might never be disclosed in public. Ms Gilvarry emphasised in her affidavit the “concern of the Tribunal …to protect the integrity of its enquiries and to maintain the confidence of the public and the confidence of those who had dealings with the Tribunal…”
38. I am satisfied that these concerns are legitimate. The information communicated to Mr McKenna was highly confidential and sensitive. The Tribunal was not only entitled but bound to make every effort to keep it so. It was, of course, quite clear to every person reading the Tribunal’s letter to Mr McKenna that it was and was expressed to be entirely private and confidential.

39. The High Court was, in my view, perfectly correct to uphold the power of the Tribunal to conduct an inquiry into the source of the unauthorised disclosure and to hold that the documents were confidential.

40. The appeal, therefore, turns entirely on the third point, namely on the balance struck by the High Court between the power of the Tribunal to investigate and the right of the appellants to refuse to disclose any information about their sources.

The European Convention on Human Rights

41. I have postponed to this point reference to the Convention and the decisions of the European Court of Human Rights. Both have, of course, been considered in great detail by the High Court in its judgment and have been argued by both parties to the appeal. Those decisions are relevant to the outcome of the present proceedings because of the effect that has been given to the Convention in Irish law.

42. The European Convention on Human Rights Act, 2003 was, as its long title states, passed in order to give “further effect subject to the Constitution to certain provisions” of the Convention (emphasis added). The Act is necessarily, as it says, “subject to the Constitution.”

Section 2(1) of the Act provides that:

“ In interpreting and applying any statutory provision or rule of law, a court shall, in so far as is possible, subject to the rules of law relating to such interpretation and application, do so in a manner compatible with the State’s obligations under the Convention provisions.”

Section 3(1) provides:

“Subject to any statutory provision (other than this Act) or rule of law, every organ of the State shall perform its functions in a manner compatible with the State’s obligations under the Convention provisions.”

The definition of an “organ of State” in section 1 includes “a tribunal………which is established by law or through which any of the legislative, executive or judicial powers of the State are exercised.” The Tribunal undoubtedly comes within that definition.

Section 4 provides:

Judicial notice shall be taken of the Convention provisions and of—

(a) any declaration, decision, advisory opinion or judgment of the European Court of Human Rights established under the Convention on any question in respect of which that Court has jurisdiction,

(b) any decision or opinion of the European Commission of Human Rights so established on any question in respect of which it had jurisdiction,

(c) any decision of the Committee of Ministers established under the Statute of the Council of Europe on any question in respect of which it has jurisdiction,

and a court shall, when interpreting and applying the Convention provisions, take due account of the principles laid down by those declarations, decisions, advisory opinions, opinions and judgments.

43. The combined effect of these provisions for the purposes of the present case is that the relevant sections of the Tribunals of Inquiry legislation must be interpreted in “a manner compatible with the State’s obligations under the Convention provisions.” For that purpose, the court must take judicial notice of the Convention provisions themselves and of the various documents mentioned in section 4 of the Act of 2003. Foremost among those are the judgments of the European Court of Human Rights. The requirement that the Court take judicial notice of the Convention and of the various documents referred to means that they can be relied upon by the Court without special proof. The Court must, in addition, as the concluding words of the provision make clear, “take due account” of the principles laid down in those judgments. This is not the same as saying that they constitute binding precedents.

44. Although no issue arises in the present case of conflict between the Convention provisions and the Constitution, it is important to recall that, in the event of such a conflict, it is the Constitution which must prevail. Both the High Court and this Court on appeal have been concerned with the effect that is to be given in Irish law to the provisions of the Tribunals of Inquiry Acts and the orders made by the Tribunal. It is to state the obvious that a distinction must be made between this exercise of jurisdiction and that performed by the Court at Strasbourg exercising jurisdiction in international law, potentially leading to decisions binding on the State.

45. Article 10 of the European Convention on Human Rights provides as follows:

1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.

2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”
46. The rights of the appellants to freedom of expression pursuant to Article 10.1 are not in issue. Everything turns on whether the encroachment upon that right by means of the inquiry instituted by the Tribunal is “necessary in a democratic society………………for preventing the disclosure of information received in confidence…”

47. The appellants cited from a large number of judgments of the European Court of Human Rights dealing with restrictions or penalties imposed by Member States claiming reliance on Article 10.2. Amongst these decisions were Lingens v. Austria (1986) 87 EHRR 329 Castells v. Spain, (1992) 14 EHRR 445 Fressoz and Roire v. France, (1999) 31 EHRR 28 Tromso v. Norway, (1999) 29 EHRR 12 Radio Twist AS v. Slovakia, (Unreported, European Court of Human Rights, 19 December 2006).
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.

The following statements from the judgment of the court in Lingens v. Austria in 1986 show the general approach of the Court:

“39. The adjective ‘necessary’, within the meaning of Article 10.2, implies the existence of a ‘pressing social need’. The Contracting States have a certain margin of appreciation in assessing whether such a need exists, but it goes hand in hand with a European supervision, embracing both the legislation and the decisions applying it, even those given by an independent court. The Court is therefore empowered to give the final ruling on whether a ‘restriction’ or ‘penalty’ is reconcilable with freedom of expression as protected by Article 10.

40. In exercising its supervisory jurisdiction, the Court cannot confine itself to considering the impugned court decisions in isolation; it must look at them in the light of the case as a whole, including the articles held against the applicant and the context in which they were written. The Court must determine whether the interference at issue was ‘proportionate to the legitimate aim pursued’ and whether the reasons adduced by the Austrian courts to justify it are ‘relevant and sufficient’.

41. In this connection, the Court has to recall that freedom of expression, as secured in paragraph 1 of Article 10, constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and for each individual’s self-fulfilment. Subject to paragraph 2, it is applicable not only to ‘information’ or ‘ideas’ that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. Such are the demands of that pluralism, tolerance and broadmindedness without which there is no ‘democratic society’.

These principles are of particular importance as far as the press is concerned. Whilst the press must not overstep the bounds set, inter alia, for the ‘protection of the reputation of others’, it is nevertheless incumbent on it to impart information and ideas on political issues just as on those in other areas of public interest. Not only does the press have the task of imparting such information and ideas: the public also has a right to receive them. In this connection, the Court cannot accept the opinion, expressed in the judgment of the Vienna Court of Appeal, to the effect that the task of the press was to impart information, the interpretation of which had to be left primarily to the reader.

42. Freedom of the press furthermore affords the public one of the best means of discovering and forming an opinion of the ideas and attitudes of political leaders. More generally, freedom of political debate is at the very core of the concept of a democratic society which prevails throughout the Convention.

The limits of acceptable criticism are accordingly wider as regards a politician as such than as regards a private individual. Unlike the latter, the former inevitably and knowingly lays himself open to close scrutiny of his every word and deed by both journalists and the public at large, and he must consequently display a greater degree of tolerance. No doubt Article 10 para. 2 enables the reputation of others – that is to say, of all individuals – to be protected, and this protection extends to politicians too, even when they are not acting in their private capacity; but in such cases the requirements of such protection have to be weighed in relation to the interests of open discussion of political issues.”

48. The European Court has been at pains to emphasise that the right to freedom of expression is not unlimited. It usually states, as in the above passage, that the press must not “overstep certain bounds.” The court has said that “Article 10 does not…… guarantee a wholly unrestricted freedom of expression even with respect to press coverage of matters of serious public concern.” For example, it may be necessary, depending on the circumstances, to balance an individual’s right to private and family life guaranteed by Article 8 of the Convention. Member States have a “certain margin of appreciation in assessing whether” there is a need for a restriction.

49. 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.”

50. One of the public interests recognised by Article 10.2 as potentially justifying a restriction on the exercise of freedom of expression is “preventing the disclosure of information received in confidence.” It is cases concerning this precise issue that are the most relevant to the present appeal. Two cases deserve careful consideration.

In the case of Fressoz and Roire, cited above, the applicants were a publisher and a journalist with the French satirical newspaper, Le Canard enchaîné. During a period of industrial unrest involving the motor-car manufacturer, Peugeot, the applicants published an article including details of the personal notices of assessment to tax of the chairman and managing director of the company. The second applicant said that the documents had been sent anonymously in an envelope addressed to him by name. The applicants were prosecuted and ultimately convicted by a Paris court of an offence of handling these documents which had been obtained through a breach of professional confidence by an unidentified tax official. They were fined 10,000 and 5,000FF respectively and ordered to pay the managing director 1FF for non-pecuniary damage and 10,000FF for costs.

51. The European Court reiterated its general case-law, emphasising, in particular, the public interest in the subject matter of the article: an industrial dispute at one of the major French motor car manufacturers. The court accepted, at paragraph 52, that “people exercising freedom of expression, including journalists, undertake ‘ duties and responsibilities’ the scope of which depends on the situation and technical means they use.” The court proceeded:

“ While recognising the vital role played by the press in a democratic society, the court stresses that journalists cannot, in principle, be released from their duty to obey the ordinary criminal law on the basis that Article 10 affords them protection. Indeed, paragraph 2 of article 10 defines the boundaries of the exercise of freedom of expression.”

The court went on to explain, at paragraph 53, that it “must …determine whether the objective of protecting fiscal confidentiality, which in itself is legitimate, constituted a relevant and sufficient justification for the interference.”

The court then explained the extent to which information about the tax affairs of individuals is, in fact, generally available in France. The French government had accepted that “a degree of transparency exists regarding earnings and pay rises.” The extent of this transparency was significant:

“Thus local taxpayers may consult a list of the people liable to tax in their municipality, with details of each taxpayer’s taxable income and tax liability. While that information cannot be disseminated, it is thus accessible to a large number of people who may in turn pass it on to others. Although publication of the tax assessments in the present case was prohibited, the information they contained was not confidential.………… Accordingly, there was no overriding requirement that the information to be protected as confidential.”

The court noted that there had been no dispute about the accuracy of the article or the good faith of the journalist, who acted in accordance with the standards governing his profession. This led to the court to find a violation of Article 10. It concluded, at paragraph 56, that there was not: “a reasonable relationship of proportionality between the legitimate aim pursued by the journalists’ conviction and the means deployed to achieve that aim given the interest of democratic society has in ensuring and preserving freedom of the press.”

52. Goodwin v United Kingdom (1996) EHRR 123, although decided some years prior to the Canard enchaîné case just described comes in conveniently at this point, since it is directly concerned with an order that a journalist disclose his source. That case concerned commercial information of a highly confidential and secret character: the corporate plan for the refinancing of an important company. It was claimed that disclosure would threaten the business and the livelihood of its employees. The information was communicated to the journalist by a person who, though known to the journalist, wished to remain anonymous. The company managed to secure an interim injunction restraining publication: it had learned of the disclosure of the information because the journalist had contacted it to make some enquiries. The fact of this injunction was highly material to the decision of the court. The English courts, all the way to the House of Lords, made orders requiring the journalist to disclose his source. He refused. The House of Lords fined him £5000 for contempt of court. In its judgment on the journalist’s case, the European court had this to say about journalistic sources:

“Protection of journalistic sources is one of the basic conditions for press freedom, as is reflected in the laws and the professional codes of conduct in a number of Contracting States and is affirmed in several international instruments on journalistic freedoms. Without such protection, sources may be deterred from assisting the press in informing the public on matters of public interest. As a result the vital public watchdog role of the press may be undermined and the ability of the press to provide accurate and reliable information may be adversely affected. Having regard to the importance of the protection of journalistic sources for press freedom in a democratic society and the potentially chilling effect an order of source disclosure has on the exercise of that freedom, such a measure cannot be compatible with Article 10 of the Convention unless it is justified by an overriding requirement in the public interest.”

The court laid emphasis on the need for any restriction on freedom of expression to be “convincingly established.” It said that the “national margin of appreciation is circumscribed by the interest of democratic society in ensuring and maintaining a free press.” Therefore, “limitations on the confidentiality of journalistic sources call for the most careful scrutiny by the court.”

The court then analysed the justification put forward by the company in the national court and by the United Kingdom government in its defence to the application. It attached great weight to the fact that the injunctions granted to the company effectively prevented further dissemination of the confidential information, which had largely achieved the objective sought by the disclosure order. It accepted, nonetheless, that the injunctions could not prevent direct communication from the journalist’s original source to the company’s customers or competitors. While accepting that these were undoubtedly relevant considerations, it considered that the additional restriction which they entailed “was not supported by sufficient reasons for the purposes of Article 10(2) of the Convention.” Ultimately, the court 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.”

It should be noted that the European Court did not doubt that there was a “pressing social need” for restraint of publication of the information.

The Court also comments on the state of US law in the opinion, noting, “There is no federal legislative protection of journalists’ sources. Moreover, it seems fair to say that the existence of a journalistic privilege of nondisclosure is highly contested in the federal courts and that, at the very least, it is certainly not regarded, where it is recognised, as absolute…. The American courts display a notable reluctance to allow to journalists a form of immunity from the obligation incumbent on all other citizens to obey the law, in particular, to give evidence when summoned and generally to participate in the judicial process. The federal courts have shown themselves willing, in the very recent past, to imprison journalists for contempt of court for refusal to give evidence before a grand jury, where a source would be revealed.

Dr. O’Dell also provides helpful analysis here.