William Goodwin, a trainee journalist on a British journal, the Engineer, received a telephone call leaking information about the financial affairs of a company, writes Vincent Browne
The company, facing an expected loss of £2.1 million, was attempting to raise a £5 million loan. He contacted the company to check facts in the article. The company concluded the information came from an internal confidential document. They sought and obtained an injunction restraining publication of the article.
Journalists are given some latitude under British law in protecting the identity of their sources. The Contempt of Court Act 1981 provides that a court is not to order the press to reveal the identity of a source unless satisfied that it is "necessary in the interests of justice or national security or for the prevention of disorder or crime".
In the above case, the High Court, the Court of Appeal and the House of Lords agreed it was in the interests of the company to be able to identify the source of the leak. William Goodwin was ordered to reveal his source. He refused.
The case eventually found its way to the European Court of Human Rights under Article 10 of the European Convention on Human Rights, which states freedom of expression may be subject to restrictions prescribed by law and which are necessary in a democratic society.
In its judgment, the court acknowledged that freedom of expression constitutes one of the essential foundations of a democratic society. The safeguards to be afforded to the press were of particular importance.
The protection of journalistic sources was one of the basic conditions of press freedom. "Without such protection, sources could be deterred from assisting the press in informing the public on matters of public interest. As a result the vital public watchdog role of the press could be undermined". Because of the importance for press freedom in a democracy of protecting sources, and the potentially chilling effect an order of source disclosure would have on the exercise of said freedom, such a measure could not be compatible with the convention unless it was justified by an overriding requirement in the public interest. This had to be "convincingly established".
The court held by a majority of 11 to 7 that in this instance there was not a sufficient justification for demanding that the journalist reveal his source, in spite of the interest the company had in identifying the disloyal employee who had leaked the information. All but one of the judges on the court asserted that the protection of journalists' sources was one of the conditions of press freedom, essential to the watchdog role of the press.
Based on this precedent there is a good reason for the Irish courts to find that Geraldine Kennedy, editor of The Irish Times, and Colm Keena, the public affairs correspondent of the newspaper, should not be required to reveal their source for the story that broke the news of payments to Bertie Ahern. But what is certain is that this is an issue for the courts to decide on where the balance of the "interests of justice" lies in this instance, not for the editor and journalist themselves, nor the newspaper. On that basis, The Irish Times is likely to face more trouble over its decision to destroy a document that the planning tribunal had ordered it to present. There is a public interest in journalists' sources being protected, but the crux lies in the unilateral decision of the newspaper to destroy a document that was the subject of a tribunal order.
Journalists and newspapers are no less immune from the requirements of the law and the Constitution than anybody else. There is an obvious public interest in protecting the confidentiality that arises between a journalist and a person supplying information that affects the public interest. But the balance between the protection of such confidentialities and other competing interests, such as the integrity of the procedures of a tribunal established by law, is a matter for determination by the courts, not by journalists, editors or newspapers.
I do not know what material The Irish Times obtained that enabled it to break this important story about the personal financial dealings of our Taoiseach, dealings which are being investigated by a tribunal that is already subjected to concerted pressures to drop such investigations. And the Bill about to be presented to the Dáil giving the Government the right to close down tribunals is an outrageous initiative in current circumstances. But the disclosure of a tribunal document at a time when the tribunal is under such siege - and at a time when it is on the verge of opening up what may transpire to be quite the worst of all the planning scandals - is a blow to its viability.
The public certainly has an interest in journalists' sources being protected, but the public also has a crucial interest in this tribunal being allowed to get on with its investigations into this very serious issue - the Quarryvale scandal which deprived a vulnerable, impoverished community of basic services.