The right of Barry O'Kelly not to reveal his sources is now established in European law, writes Michael Foley.
There is a sense of déjà-vu about the decision of the Mahon tribunal to refer the case of the Sunday Business Post and its reporter, Barry O'Kelly, to the High Court for publishing information confidential to the tribunal, and because Mr O'Kelly said he would not disclose his sources.
Back in 1996, Barry O'Kelly - yes, the same Barry O'Kelly - then working for the Star, was asked by a judge of the Circuit Court to name his sources for a story he had written. He refused.
The issue was later resolved when counsel for the Attorney General told the court that Irish law had "developed" since the case of Kevin O'Kelly (no relation) back in the 1970s, who went to jail rather than confirm to a court that the man he interviewed for RTÉ, as the chief of staff of the IRA, was Seán Mac Stiofáin, who was facing charges of membership of the IRA.
The development was that concerning a young English journalist, Bill Goodwin, who was fined for refusing to reveal a confidential source of information. His case finally went to the European Court of Human Rights which, in a landmark judgment, ruled that compelling disclosure of sources was not necessary in a democratic society, that protection of confidential sources was "an essential means of enabling the press to perform its important function of public watchdog and should not be interfered with unless in exceptional circumstances where vital public or individual interests are at stake".
Mr O'Kelly avoided prison in 1996 when the judge, following the advice of the Attorney General, was able to continue the case without asking Mr O'Kelly to name his sources.
Now, eight years later, Mr O'Kelly has been asked, again, to name his source. Yet again, he has refused, in line with journalistic professional ethics, and yet again he is threatened with prison. This time there is a difference: the European Convention on Human Rights has become part of Irish law and so can be cited in Irish courts.
So what will happen to Mr O'Kelly?
Well, Irish courts have always refused to allow any leeway to journalists. Two journalists have been to prison, the aforementioned Kevin O'Kelly, and Joe Dennigan, a political correspondent of the Irish Press, who was imprisoned for one month in 1934 for refusing to name a person he quoted as a "government source". The previous year, the editor of the Roscommon Herald was fined for refusing to name a source to a court.
Most shamefully, the only person to appear in court following the beef tribunal was the journalist Susan O'Keeffe, whose television documentary led to the tribunal being established. She was charged with contempt of the tribunal and appeared in the District Court. The case collapsed due to lack of evidence.
One of those who demonstrated against her being charged on that cold January day in 1995 was a backbench TD, Mr Michael McDowell. He later said he was preparing a private members' Bill to give journalists privilege in relation to maintaining the anonymity of confidential sources. He was persuaded to withdraw it by the then Fianna Fáil/Labour coalition government, who told the deputy it was preparing its own legislation. We are still awaiting it.
Mr O'Kelly's refusal to name his sources has highlighted two competing rights: that of the tribunals to give assurances of confidentiality to people providing information; and that of a press publishing information that might not otherwise get into the public domain in the public interest. There is no reason to hold that Irish courts would rule in favour of the latter, even with the ruling of the European Court of Human Rights and its ringing defence of the rights of the press and journalists.
For journalists, maintaining the anonymity of confidential sources is central to what they do. Even if a guarantee of anonymity is sometimes given too frequently, it is still an ethical imperative that journalists feel bound to maintain. It is included in all codes of conduct. It will be part of the new Irish ethical code that will be central to the self-regulatory regime, with its press ombudsman and press council, expected to be established next year.
The legal world has informally recognised this, and most barristers privately agree that it is foolish to ask a journalist to name a source. The case they are defending or prosecuting then becomes one relating to a journalistic principle.
That has been the somewhat lame argument for not legislating for this. However, the issue of Barry O'Kelly and the Sunday Business Post has shown that judges will continue to ask journalists to reveal the names of sources, leaving journalists with no choice but to refuse.
The case against the Sunday Business Post has other implications. The High Court has agreed to restrain the newspaper from publishing material based on confidential documents from the inquiry.
The tribunal has asked for, and been granted, a dangerous blanket ban that will restrain the Sunday Business Post from publishing stories based on material it might have, or have seen. This will mean a ban on publication of material that could well be in the public interest, without any examination of that material.
Other issues include one raised by the publishers' organisation, National Newspapers of Ireland (NNI). In a statement, it called for legislation to grant privilege to "bona fide" journalists, a term that might have worrying implications relating to a legal definition as to what is a "bona fide" journalist, with the courts being asked to decide who is a journalist and worthy of being given a legal privilege.
Mr McDowell now has the chance to do what he was unable to do 10 years ago. He can introduce legislation based on the Goodwin judgment, along with the promised reform of the law of defamation, at the same time as the publishers and union in the newspaper industry unveil their voluntary regulatory regime.
Or there are two alternatives: either leave the present unsatisfactory position alone and hope judges do not ask journalists to name their sources; or take Barry O'Kelly's case to Strasbourgand have the judges of the European Court of Human Rights rule where our own judges and legislators have been unwilling to go until now.
Michael Foley is a lecturer in journalism at the Dublin Institute of Technology