European court rules against ‘Irish Times’ on tribunal costs

The Irish Times has lost its case at the European Court of Human Rights over a decision to award costs against the newspaper despite the paper having won a legal battle against the Mahon tribunal.

In a key decision in 2009, the Supreme Court unanimously upheld an appeal by then Irish Times editor Geraldine Kennedy and public affairs correspondent Colm Keena against a High Court ruling that they should reveal their sources.

The case followed the paper's publication of a story in 2006 which revealed that the Mahon planning tribunal was investigating a number of payments to then taoiseach Bertie Ahern.

The Supreme Court unanimously upheld the appeal by The Irish Times but ruled that there were “exceptional circumstances” in the case - the journalists’ destruction of documents related to the source - which justified a departure from the normal rule that costs go to the winning side.

It directed the paper to pay all costs of the court proceedings, including the costs of the tribunal.

In its application to the European Court of Human Rights, The Irish Times argued that a number of the rights of Kennedy and Keena had been violated, including that there had been an interference with their right to protect their journalistic sources.

The newspaper claimed there was a strong chilling effect to the Supreme Court’s decision on costs, since it was clear to the press, to potential sources and to the public that journalists could be compelled, under the threat of an order of costs, to disclose the source of information given in confidence. It said this was all the more unacceptable in light of the highly political subject matter of the case, which warranted the highest protection.

The Strasbourg court, by a majority, rejected the newspaper’s application on all grounds and found that it was in some parts “manifestly ill-founded”.

It rejected the claim that the Supreme Court’s ruling on costs was an interference in the journalists’ right under Article 10 of the Convention on Human Rights to protect the secrecy of the source who provided them with the confidential documents.

“The convention does not confer on individuals the right to take upon themselves a role properly reserved to the courts,” the court stated.

“As the domestic courts underscored, this is, effectively, what the applicants did through their deliberate destruction of the very documents that were at the core of the tribunal’s inquiry.”

The court disagreed with the newspaper’s complaint of the chilling effect of the costs order on freedom of expression. It said the costs ruling could have “no impact on public interest journalists who vehemently protect their sources yet recognise and respect the rule of law”.