THE SUPREME Court has upheld an appeal by two Irish Timesjournalists against an order requiring them to answer questions at the Mahon tribunal about the source of an article revealing payments to former taoiseach Bertie Ahern.
The court said the High Court had erred in the exercise of balancing the rights of the journalists,
Irish Times
editor Geraldine Kennedy and public affairs correspondent Colm Keena, not to disclose their sources against the need of the tribunal to investigate the source of leaks. The decision of the five-judge court was unanimous.
An article written by Mr Keena in The Irish Timesin September 2006 revealed the tribunal was investigating payments to Mr Ahern in 1993 when he was minister for finance. The article, which the tribunal said was based on a confidential document, said businessman David McKenna was among three or four persons contacted by the inquiry about payments totalling between €50,000 and €100,000. The article sparked controversy over the finances of Mr Ahern, who resigned in May 2008.
Yesterday’s judgment by Mr Justice Nial Fennelly said the High Court had erred because it had attached “great weight” to the “reprehensible” conduct of the two journalists in destroying documents on which the article was based.
Mr Justice Fennelly found the High Court, by devaluing journalistic privilege “so severely”, had failed to strike the proper balance between the rights of the tribunal to protect its private investigations and of the journalists to protect the source of their information.
An order compelling the journalists to answer questions for the purpose of identifying their source could only be justified by “an overriding requirement in the public interest”, he said. It was “very difficult to discern any sufficiently clear benefit to the tribunal from any answers to the questions they wish to pose” to justify the making of an order, he added.
The National Union of Journalists described the outcome as “a great day for press freedom”. Speaking outside the court, Ms Kennedy said the decision was important because it enshrined in Irish law for the first time the right of journalists to protect their sources.
The issue of costs will be decided in the autumn.
The tribunal, which has finished public hearings, is unlikely to appeal the decision to the European Court of Human Rights. It is currently writing up its final report, which will be published later this year or in 2010.