The journalist’s right to protect sources: European Court of Human Rights begs to differ on Irish Times case

There is a subtle but important difference between the understanding journalists have of the ethical/legal right and duty to protect sources and that held by the courts. Both accept the principle – known as journalistic privilege – as a key pillar of the freedom of the press, a principle confirmed by the European Court of Human Rights (ECHR) in Goodwin v the United Kingdom, and, importantly, acknowledged formally as a constitutional principle in The Irish Times' Supreme Court case, Mahon Tribunal v Keena and Kennedy.

Crucially, the courts insist that the right is not absolute, and has to be balanced against other rights, like that of a tribunal to conduct its business. That act of balancing is entirely a matter for the courts, not journalists, a view endorsed emphatically by the ECHR and which the latter found was subverted by Geraldine Kennedy and Colm Keena when they destroyed leaked documents from the Mahon tribunal to protect their source.

Journalistic ethics, on the other hand, require journalists to make a tacit or explicit commitment to their sources not to identify them, an assurance not qualified by an “if, that is, the courts don’t order me to do so”. It is an assurance akin to that of the priest in the confessional that journalists insist is necessary to the confidence of secret sources and the flow of stories that would otherwise remain untold.

Never more so, as the Irish Times' former editor Kennedy would argue than the story over private payments to Bertie Ahern, central to the ECHR case which the paper has now lost. "There was a strong possibility," she writes today, "that the matter was outside the tribunal's terms of reference since the payments did not relate to planning. The story might never enter the public domain." Publication was not only a matter of public interest, but of public duty.

How then to protect the source? Both journalists felt that the only way to guarantee anonymity was to destroy the letters and to refuse to answer any questions that might identify the source. The ECHR insists that Kennedy and Keena should have left that decision to the courts and that “there were no grounds to fear that the safeguards provided by the domestic courts might have been deficient.”

On the contrary, there was every reason to fear that the courts, which had not yet firmly rooted the protection of sources in Irish law, would side with the tribunal and demand that they expose the source. Indeed, that's exactly what happened in the High Court which concluded that "the defendants' privilege against disclosure of sources, is overwhelmingly outweighed by the pressing social need to preserve public confidence in the tribunal ."

It is to the credit of the Supreme Court that it took a different view and insisted, in line with now-established European law, that an order compelling them to answer questions for the purpose of identifying their source could only be "justified by an overriding requirement in the public interest" (Godwin). There was, however, no inevitability in that ruling, a reality of which both journalists were acutely aware in deciding to destroy the documents.

The sting in the tail, however, was that the "calculated and deliberate" attempt, as the court saw it, to undermine the ability of the courts to take the decision on the fate of the documents would be punished, even though the court sided with the paper on the central issue of privilege. The unusual decision, upheld by the ECHR, that costs, likely to run to several hundred thousand euros, would not follow the cause and will fall to The Irish Times is an onerous and unfair burden on the "innocent" party to the case. And a chilling warning to all journalists on the limits to their rights.