The Irish Law on Protecting Sources: Can it apply to the Anglo Tapes?

THE LAW

Bunreacht na hEireann

Article 40.6.1.

The State guarantees liberty for the exercise of the following rights, subject to public order and morality:

i. The right of the citizens to express freely their convictions and opinions.

The education of public opinion being, however, a matter of such grave import to the common good, the State shall endeavour to ensure that organs of public opinion, such as the radio, the press, the cinema, while preserving their rightful liberty of expression, including criticism of Government policy, shall not be used to undermine public order or morality or the authority of State.

Cases mentioned

Cornec v. Morrice (and ors.) [2012] IEHC 376

Walsh v. News Group Newspapers [2012] IEHC 353

JOURNALISTIC PRIVELEGE: AN OVERVIEW

When I speak of journalistic privilege, it ought to be clear that I refer to the protection of the work undertaken by journalists in the dissemination and publication of that information which is pertinent to public awareness. There is no automatic ‘immunity’ from prosecution for individual journalists.

The fact that journalistic privilege exists is indisputed, and I refer you back to Article 40.6.1. of the Constitution without much need for elaboration.

The reason for journalistic privilege in the Constitution is more interesting.

The essential reason was eloquently described by Hogan J in Cornec, where he identified the importance of the informative role of the media in enabling public debate.

If journalism and the media did not enjoy at least a general protectuion in respect of their sources, robust political debate – a sine qua non in any democratic society – would be still born. Only the naïve would suggest otherwise.

Judge Hogan went on to clarify that journalistic privilege also applies to media sources, and in fact also applies to cover what it was those sources actually said. This establishes quite a broad protection for journalistic activity under the Irish Constitition.

Of course, journalistic privilege may also be inferred from Article 10 of the European Convention on Human Rights.

To that effect, the crucial role of the free press was recently affirmed in Sanoma Uitevers BV v. Netherlands [2011], and most emphatically affirmed in Goodwin v. UK [1996], although it is fair to say that the Convention is not quite so explicit in its protection of the press as Article 40.6.1. of our Constitution.

JOURNALISTIC PRIVILEGE: THE EXCEPTIONS

If Hogan J’s ruling in Cornec is a broad and expansive interpretation of journalistic privileges, the Walsh v. News Group [2012] is more limited. Here, counsel for Louis Walsh sought discovery of documents in connection with Louis Walsh’s defamation action against Leonard Watters, after the latter falsely claimed to have been sexually assaulted by Walsh in a well known Dublin night club.

Here, O’Neill J remarked:

“Whilst journalistic privilege is there to protect the proper functioning of journalism, the allegations made by the plaintiff … could well merit the description of improper journalism”

He went on to hold that the disclosure of confidential information by a member of the Gardaí would be likely to be in contravention of s.62 of the Garda Act, 2005, and therefore,

“…as the activity impugned here is undoubtedly a criminal offence, journalistic privilege could not be availed of to shelter such activity.

Article 10(2) of the European Convention on Human Rights expressly recites the “prevention of disorder or crime” as a basis upon which a measure, necessary in a democratic society, which interfered with the normal freedom of the media, would be justified. 

The overwhelming public interest in the detection and prosecution of crime would,  in these circumstances, outweigh the public interest in the proper functioning of journalism, and hence, journalistic privilege could not apply in these circumstances.“

The qualification provided in Article 10(2) ECHR is mirrored by the qualification set down in Article 40.6.1. of Bunreacht na hEireann, where it is provided that however important a free media may be, the media may not be used to undermine public order, and this infers that the interests of criminal justice take precedence over journalistic privilege.

CONCLUSION

To summarise, media case law has revealed two important exceptions to journalistic privilege

1. Where the activity impugned is a criminal offence

2. Where there are over-riding concerns relating to public order, or the prevention of crime.

Given these qualifications, there is no doubt in my mind that there is no possibility of journalistic privilege if it emerges that the person who leaked the Anglo Tapes is a member of An Garda Síochána. This person would have undoubtedly breached s.62 of the Garda Act 2005, and therefore have committed a criminal offence.

The argument may further be made that this individual has endangered the public interest in the detection and prosecution of crime, and therefore cannot be protected (even if Ireland had enacted legislation to protect whistleblowers) because of the Constitutional provision on public order.

Despite my long epistle, these are not extraordinarily complex matters; the legal situation has been recently and clearly elucidated by these two High Court judgements.

Therefore, we cannot assume naivety on behalf of the individual in question, nor the journalists with whom he co-operated. In my opinion, they must have been aware of the lack of journalistic privilege, and if Anglo Tapes came from a Garda, that Garda has embarked on a particularly brave undertaking.