Last week journalists rightly celebrated the court victory of Ed Moloney, Northern editor of the Sunday Tribune. Moloney had steadfastly stood over his right and duty as a journalist not to hand over to police his notes of an interview conducted nine years ago with William Stobie, who has since been charged in connection with the murder of solicitor Pat Finucane. The decision in favour of Moloney resulted from the judges' interpretation of the applicable legislation but was influenced in no small part by the thinking of the European Court of Human Rights in Strasbourg in the Goodwin case. In Goodwin, the European Court had underlined the importance of the protection of journalists' sources for press freedom in a democratic society and the potentially chilling effect an order for source disclosure had on the exercise of that freedom. Disclosure could be justified only by an overriding public interest.

However, the Sunday Times's 's attempt to break new ground for journalists, also relying on Strasbourg jurisprudence, was less successful last Thursday, when the House of Lords denied its claim to qualified privilege in the long-running defamation action taken against it by Albert Reynolds. Nevertheless, there were hopeful signs in the judgments of the five Law Lords. Opting for the traditional common law confines of qualified privilege, the Law Lords dismissed claims that there should be an automatic defence for political reporting unless malice was proved.

At common law, qualified privilege as a defence to a defamation action arises where the speaker has a duty, whether legal, moral or social, to publish the information complained of, and the recipient of the information has a reciprocal interest in receiving it. The rationale behind the defence, as Lord Nicholls explained, is the law's recognition of the need, in the public interest, for a particular recipient to receive frank and uninhibited communication of particular information from a particular source. The key word here is "particular" because the courts have tended over the years to confine the defence to particular, limited situations and have refused to recognise any general right or duty on the part of the media to impart information to the public at large, or any reciprocal interest on the part of the public at large to receive it. That reluctance on the part of the courts to broaden the scope of the privilege to include the media and public now appears to be waning. The duty-interest test could not be considered in isolation, the Law Lords said. Account had to be taken of the context of the publication. The question, according to Lord Nicholls, was whether publication of the information was privileged because of its value to the public, and that value depended on quality as well as its subject-matter. Whether that is the appropriate test or whether it was correctly applied in the circumstances of the Sunday Times story will no doubt be the subject of debate.

In any event, the Law Lords may not have recognised an automatic or generic privilege for the media in all cases of political reporting or the reporting of serious matters of public concern, but they do appear to have recognised that the privilege could apply to the media in certain circumstances and that the public does have a right to know. That in itself is a gain for the media and public alike. To the extent that the duty of the media to inform and the right of the public to know have been recognised, it is due once again to the jurisprudence of the European Court of Human Rights in a strong line of media cases decided in accordance with Article 10 of the European Convention on Human Rights. However, concern was expressed in the Sunday Times case that to develop political information as a new category of qualified privilege regardless of the circumstances would not provide adequate protection for individual reputation. The standard sought by the common law, it was asserted, was only that of responsible journalism.

Thus, the steps taken to verify the truth of the story was one of a number of factors to be taken into account. The case law of the European Court of Human Rights, too, could be said to support responsible journalism, to require the checking of information, evidence of good faith and adequate factual basis (Thorgeirson v Iceland 1992), but it does so in a manner that does not require a journalist to prove the truth of assessments or "value-judgments" (Lingens v Austria 1986), and that leaves a margin for error in reporting political events or matters of public concern. Lord Nicholls in the Sunday Times case did acknowledge journalists act without the benefit of hindsight and that any doubt should be resolved in favour of publication, but, nonetheless, rejected the paper's claim for qualified privilege. Indeed, none of the judges, even those who dissented in the case, appeared willing to embrace the malice standard of US defamation law, whereby a politician or public figure must prove malice on the part of the publisher to succeed in a defamation action. It would be unacceptably difficult for an individual to prove malice, it was claimed, especially if the right to protect sources is upheld.

ONE other hopeful aspect of the Lords' decision for journalists, however, is the acceptance that in general a newspaper's unwillingness to disclose its sources should not weigh against it. Taken with the Northern Ireland court's decision in Ed Moloney's case, that must represent a step forward for the practice of journalism. Nonetheless, the Sunday Times lost its appeal in the House of Lords and must decide now whether to proceed to the European Court of Human Rights in Strasbourg. It has had some noteworthy successes there in the past, including one in 1979 which led to changes in contempt of court law in the UK and the introduction of what was, at the time, increased protection for journalists and their sources. The decision to go to Strasbourg could again bring dividends.

Marie McGonagle lectures in law at NUI Galway, and is the author of a number of works on media law.