Ed Moloney, the Northern correspondent of the Sunday Tribune, has been required by a Northern court to hand over notes of an interview he did with William Stobie, the person charged in connection with the murder of the Belfast solicitor, Pat Finucane.
He is refusing to hand over the notes claiming (a) that the protection of sources is a matter of journalistic principle and therefore in the public interest, and (b) that journalists cannot be required to assist in the detection of crime, which is the job of the police. His newspaper, the NUJ, several other newspapers, including this one, and an array of New York media celebrities support his stance.
William Stobie gave the interview some years ago on the understanding that Moloney would reveal all that was said in the interview, including the identity of the source, in the event of his being charged in connection with Pat Finucane's murder, but not until then.
To his credit, Ed Moloney respected the confidence until he became free to use the interview, even though it must have been tempting to use material from the interview, given the explosive nature of Stobie's revelations about the collusion of the security forces in the murder. Knowing Ed Moloney, I would have expected no less.
But Stobie has now been charged, and Moloney has published the interview, so what confidentiality is at stake? It could be, of course, that the notes would reveal some further information, which Stobie required Moloney to keep confidential. If that is the case, there could well be an issue of substance in all of this. However, if that is so, why haven't we been told?
As to journalists not doing the work of the police, on what basis should journalists be treated differently from others in society, other than in relation to the protection of sources? The NUJ and others have made a lot of mileage over a decision of the European Court of Human Rights about the rights and privileges of journalists. This is the Goodwin case.
On November 2nd, 1989, a trainee journalist, William Goodwin, working for a British technical magazine, the Engineer, was contacted by a person who previously had supplied him with reliable information. This person told Goodwin that a company called Tetra Ltd was in deep financial trouble and was in the process of raising a loan for £5.2 million.
It was true that Tetra was in financial trouble and was raising this money. However, there was no question of Tetra having behaved dishonestly either in relation to its shareholders or its creditors or anyone. The information, which was supplied, came from a confidential corporate plan, a copy of which had been stolen from the company's offices.
William Goodwin contacted the Tetra offices to check the facts and to get a comment on them. The executives of Tetra went to the High Court and obtained an interim injunction retraining the Engineer from publishing the information. Tetra stated that if the information was published the company would suffer irreparable harm, risking the loss of 44 jobs.
A few days later the High Court went further and ordered the publishers of the Engineer to produce Goodwin's notes of his interview. Goodwin refused to co-operate. Following further legal skirmishes, the issue was appealed to the English Court of Appeal. There the presiding judge noted that Tetra was continuing its refinancing negotiations but was menaced by the anonymous informant "ticking away beneath them like a time bomb". He said: " Prima facie they are entitled to assistance in identifying, locating and defusing it."
The judge noted that what was required in such cases was a balancing exercise between the general public interest in maintaining the confidentiality of journalistic sources and, on the other hand, where disclosure was necessary in the general interest of the administration of justice.
In engaging in such a balancing exercise, the judge said that a number of considerations came into play. If, for instance, it was some iniquity that was being disclosed, then the public interest in maintaining confidentiality would be greater.
If, on the other hand, the disclosure might support or refute a defence of alibi in a major criminal trial, the necessity for disclosure "in the interests of justice" would be enhanced. In the particular case, there was no question of any iniquity being revealed, and there was no legitimate public interest in the facts at issue. What was involved was a wholly unjustified intrusion into privacy. The House of Lords upheld the decision. William Goodwin appealed the case to the European Court of Human Rights. Seventeen of the 18 judges on the court agreed that what was at stake was a balancing exercise between the public interest in protecting the confidentiality of journalists' sources and the interests of the administration of justice. Seven of the judges (including the Irish judge, the late Brian Walsh) agreed with the English Court of Appeal and the House of Lords.
Eleven of the judges disagreed. They held that the damage to Tetra was already taken care of by the injunction on the publication of the material. They said the additional restriction that was involved in the disclosure order was not supported by sufficient reasons to justify the exception to the freedom of expression clause in the European Convention on Human Rights.
Only one of the judges was of the view that the protection afforded to journalists' sources was absolute and even he allowed that "perhaps" in very exceptional circumstances such protection could be lifted.
What possible help is this judgment in the case of Ed Moloney? Nobody is saying that the protection of journalists' sources is not a matter of public interest, but only a few journalists are claiming that this is the only public interest issue at stake. Everyone else acknowledges that it involves a balancing between two competing public interest issues and only a court is entitled to do the balancing.
What public interest is there in Ed Moloney protecting the identity of a source that he has already quite properly disclosed? It might be argued that the order that Moloney hand over his notes is pointless, since he has revealed everything that was in them in the published version of the interview. On that basis, it could well be that the authorities, too, are making a fuss over nothing.
There are serious issues about press freedom to be resolved here, notably the libel laws, which, in their present form, regularly obstruct the public being informed on matters in which it has a legitimate interest. But when genuine press freedom issues get mixed up with non-issues, inevitably they are trivialised. Ed Moloney should get back to being the excellent journalist he is. The NUJ should get a life.