There are few powers that a government relinquishes with greater reluctance than the ability to control the media. Notwithstanding the comprehensive promises given 18 months ago by Ms Eithne Fitzgerald, the Minister responsible, that legislation to protect journalists and their sources "should be seriously examined", there has been no sign that the Government is addressing the issue with any degree of commitment. This State, along with Britain, stands in a minority among western democracies in not recognising the integral role of the media in ensuring that public debate is properly informed. A journalist who publishes what the authorities want to suppress does so at his or her peril.
The ruling of the European Court of Human Rights this week on the case of a British journalist, Mr Bill Goodwin, who was fined £5,000 for refusing to disclose his sources has reinforced the view that the law and the courts in this State are grossly out of line with European practice. Mr Goodwin was ordered in 1989 to say where he obtained information about a company's financial position. He refused, and after losing an appeal to the House of Lords, he was fined. Three years ago, the British government rejected the possibility of reaching a friendly settlement with him at the proposal of the European Commission on Human Rights, underlining the inflexibility of its' view. The court's decision this week completely vindicated Mr Goodwin.
Here, the most notorious recent case - that of Ms Susan O'Keefe, who revealed the beef industry scandal was effectively fudged when the charge was dismissed on a technicality. Yet for several months the threat of imprisonment or a heavy fine hung over her for refusing to reply to questions at the Beef Tribunal about the source of her information. Would the case have been brought in the first place if the Director of Public Prosecutions had taken account of recent developments in European law?
These have been unequivocally against the restrictive pressures exerted in Britain and here. In a case involving Austria, the European Court of Human Rights declared, "Penalties against the press for publishing information and opinions concerning matters of public interest are intolerable except in the narrowest of circumstances owing to their likelihood of deterring journalists "from contributing to public discussion of issues affecting the life of the community" (our italics). It is difficult to conceive of a form of words more exactly applicable to a case such as Ms O'Keefe's. The correct test and order of priorities were laid down by the Norwegian Supreme Court in 1992: "The protection of (the journalist's) sources is the rule, and the question then is whether there are strong enough reasons to override that rule."
Both British and Irish law, while nominally admitting the freedom of the press, limits this right by giving arbitrarily used powers to the state. In Britain, a court may rule that "the interests of justice or national security or . . . the prevention of disorder or crime require a journalist to disclose names or other information. The 1937 Constitution (Article 40.6.1.i) declares that "Organs of public opinion ... shall not be used to undermine public order, morality or the authority of the State". In both cases, the result is a blunt weapon inhibiting, at will, the public's right to know.