ARGUMENTS USED by the media to justify the confidentiality of sources cannot apply to the Irish Timescase because the source involved was anonymous, lawyers for the planning tribunal told the hearing.
Michael Collins SC, for the tribunal, said the cultivation of the relationship between journalists and sources was the foundation of the media's claim for privilege attaching to the protection of sources.
However, he said, this wasn't the case in the current appeal by Irish Timeseditor Geraldine Kennedy and public affairs correspondent Colm Keena against a High Court order requiring them to answer questions from the tribunal. Counsel said the tribunal fully accepted that freedom of expression was protected under the Constitution and the European Convention on Human Rights.
It also accepted the importance of the role which journalists played in upholding freedom of expression, and its case was not an attempt to undermine that freedom.
However, freedom of expression was not the exclusive domain of journalists and a tribunal of inquiry also had freedom of expression. The role played by a tribunal in investigating matters of public concern was clearly of importance in promoting freedom of expression.
Ms Kennedy and Mr Keena, in their submissions, had taken "an unduly narrow and one-sided" view of freedom of expression in portraying themselves as the exclusive champions of that cause.
Mr Collins said it was argued that the relationship between a journalist and a source was a "delicate bloom" that had to be nurtured by the journalist and which would be adversely affected if the source were identified, by the drying up of the flow of information.
He read passages from Mr Keena's affidavit which he said supported this view.
However, this logic "falls away" when there is no relationship between the journalist and the source, as in the present case, Mr Collins argued.
Here, the source of the information supplied to The Irish Times in September 2006 had chosen not to talk to Mr Keena, and kept his own anonymity.
Traditionally, there was no common law privilege protecting the disclosure of sources and every citizen had an obligation in that regard. However, when someone had the "cloak" of being a journalist, another privilege arrived.
Mr Collins said the right to protect sources was an aspect of the right of freedom of expression: "If it is a privilege, it is certainly a qualified, evidential privilege."
He said it was argued that compelling journalists to disclose sources would have a "chilling effect" on the flow of information from sources to the media. However, someone who maintained his anonymity when providing information did not run that risk.
A person who was anonymous even to the journalist would not be deterred from disclosing information. There was no evidence that sources were deterred or that information had dried up or that a chilling effect applied in such cases.
The Chief Justice, Mr Justice John L Murray, said the argument of law made in cases dealing with the protection of sources was that this protection extended to anonymous sources as much as named ones. Mr Justice Joseph Finnegan said he would have thought anonymous sources were more important than named sources, and they would be dissuaded if journalists facilitated their identification.
Counsel said it was clear that an anonymous source had decided not to trust the journalist with his identity. A higher weight should be attached to the protection of a known source than an anonymous "tipster" who was not relying on any promise of confidence from the journalist.
References to the "chilling effect" resulting from the disclosure of sources was a "meaningless mantra", he continued, and matters fell to be decided on a case-by-case basis.
Mr Collins suggested that journalistic privilege should apply to every publisher, from large media institutions to "lonely pamphleteers". Nowadays, that meant that every one-man internet site and blogger, operating with no verification checks, could claim the privilege.
Mr Justice Murray said it seemed privilege extended to anyone who published anything in print or other media and who pursued this as a vocation or full-time occupation.
The case continues today.
