Mr Justice Peter Charleton has set off into an ethical and legal minefield with his announcement on Tuesday that his tribunal into alleged attempts to discredit Garda Sergeant Maurice McCabe will inquire into the limits to journalistic privilege or the protection of sources.
The tribunal has been tasked specifically to find out if the media was used as an “instrument for the dissemination of lies”, an inquiry that is enormously important to journalists.
But the protection of sources is so deeply ingrained in the ethos of journalism that he is unlikely to find any journalist willing to divulge their sources, even if they felt they had been used. Most will say that they would not be able to function as journalists the day they were no longer able to assure sources of a willingness to defy even the courts to protect their anonymity.
“Here, the privilege, if there is one,”the judge asked, “may attach to a communication to a journalist in the interests of providing truthful information to the public, but is it possible that such a privilege does not apply to using the media as an instrument of naked deceit?”
Indeed, it is arguable that the privilege relationship, specifically the ethical obligation to protecting anonymity, is transformed, and effectively nullified, if the journalist is substantially misled by that source about the substance or purpose of a leak.
But does that logic apply to the McCabe case, when no journalist actually wrote the story being planted to discredit him? Either they did not believe it or did not regard it as pertinent – either way the journalists’ obligation to protect their source was not fundamentally compromised by the misleading information.
Although the courts here and in Europe have recognised that a limited right to protect sources is an essential pillar of a free press, there remains an unresolved gap between judges and journalists.
At issue, which of them should ultimately determine whether there has been a breakdown in the journalist/source compact sufficient to void a commitment to source protection.