This decision enhances the reputation of the press and the judiciary

Yesterday's Supreme Court judgments in the case taken by NIB against RTE are an example of that court at its best

Yesterday's Supreme Court judgments in the case taken by NIB against RTE are an example of that court at its best. It is not that the judgments are weighty documents teeming with principle and reasoned argument - although there is a fair measure of both in them.

The reputation of the court is enhanced in this case not because the majority ultimately sided with freedom of information and the right of the public to receive information, but rather because the judgments, both majority and minority, and the narrow decision, indicate a very careful and conscious weighing up of competing interests.

Those interests were at once sensitive and crucially important to key operations in society: the role of the media in informing the public, on the one hand, and the confidentiality of the banking process on the other

While the court made no reference to the jurisprudence of the European Court of Human Rights and did not directly address the issue of prior restraint, some aspects of its approach are reminiscent of the approach repeatedly taken by the European Court.

READ MORE

While one would have wished for a clear evocation of the importance of the media role as a key factor in determining where the public interest lay, the majority of the court nevertheless decided that in the circumstances of this case the public interest in defeating wrongdoing outweighed the public interest in the maintenance of confidentiality.

The decision gave the green light to RTE to proceed with its investigations and to inform the public on the matters it has uncovered. In that respect, the decision was a significant recognition of the importance of investigative journalism and of media reporting.

However, the court made clear that what it was vindicating was responsible journalism. In that regard, it took a similar approach to that consistently taken by the European Court in cases such as Thorgeirson v Iceland in 1992 and Jersild v Denmark in 1994, when that court held in favour of serious news journalism undertaken responsibly with a legitimate purpose.

In a similar fashion, the Supreme Court refused to restrain RTE. Instead, it left it to RTE to decide whether to go ahead and name NIB customers, but warned that if RTE did so and wrongly named innocent investors, there could be serious consequences in the form of libel actions.

Both majority and minority judgments emphasised the role of the regulatory authorities, particularly the Revenue Commissioners. The minority would not have restrained RTE from passing the information to such authorities or, indeed, from pursuing the investigation it had legitimately undertaken. However, it felt that RTE should not be totally free to disclose the names of customers and details of their accounts.

RTE and the media in general can take heart from yesterday's decision, but it may be argued that the value of the judgments, and in particular the majority judgment, as precedent, lies more in the delicate balancing of competing interests entered into rather than in the formulation of any wider principles.

Marie McGonagle lectures in law in NUI Galway and specialises in media law