THE MAHON tribunal has failed to show any vital public interest to justify a court order requiring Irish Timeseditor Geraldine Kennedy and journalist Colm Keena to answer questions about the source of an Irish Times article about financial payments to former taoiseach Bertie Ahern, the Supreme Court has been told.
The tribunal had demonstrated a "skewed attitude" to the public interest which failed to override the established right of journalists to protect sources, a basic component of the right of free speech protected by Article 10 of the European Court of Human Rights, Donal O'Donnell SC argued.
That right had "a fixed value" across all EU states which did not depend on the circumstances of publication or whether a source was known or not, he said. The destruction of documents forming the basis of the Irish Timesarticle also did not disprove the right of freedom of expression.
There was no decision by the European Court of Human Rights compelling journalists to disclose their sources and decisions of that court had set a very high hurdle to cross for imposing restrictions on freedom of expression.
The journalists' case was also supported "in spades" by the protection in Article 40 of the Constitution of the role of the press in educating public opinion. The newspaper article was "at the very heart" of the education of public opinion and the common law had since 1890 recognised the value of protecting journalists' sources as part of protecting freedom of expression.
Mr O'Donnell, with Eoin McGonigal SC, was making closing arguments in the appeal by Ms Kennedy and Mr Keena, the public affairs correspondent, against a High Court order requiring them to answer questions relating to the source of the article.
Written by Mr Keena and published in The Irish Timeson September 21st, 2006, the article disclosed that the tribunal was investigating payments to Mr Ahern in 1993 when he was minister for finance. It said businessman David McKenna was among three or four people contacted by the tribunal about payments totalling between €50,00 and €100,000.
The tribunal claimed the article was based on a confidential letter sent by it to Mr McKenna and took High Court proceedings when the journalists refused to answer questions relating to the source.
In October 2007, a three-judge High Court made an order requiring the journalists to answer questions but put a stay on that order pending the outcome of the Supreme Court appeal, which concluded yesterday.
The Chief Justice, Mr Justice John Murray, presiding, said the court would reserve judgment.
The High Court made its order after ruling that The Irish Timesprivilege against disclosure of sources was "overwhelmingly outweighed" by the "pressing social need" to preserve public confidence in the tribunal but also stressed its decision must be seen in the circumstances of the case where answers to the questions were unlikely to reveal the source.
If the answers could lead to source identification, the journalists' privilege against disclosure could be invoked, the court said.
Mr O'Donnell said yesterday that this case required a "close and penetrating analysis" of its circumstances and the proper value to be attributed to the right to freedom of speech. However, the tribunal had advanced a "series of dubious propositions".
The key decision of the European Court of Human Rights relating to freedom of expression, the Goodwin decision of 1996, could not be interpreted, as the tribunal suggested, as "a narrow call" based on the facts of that particular case.
The ECHR ruled in Goodwin that sources should be protected because of "the chilling effect" otherwise on the flow of information to the press on which a democratic society depends. No case existed where the ECHR had overridden the right of journalists to protect their sources and the ECHR, unlike the tribunal, drew no distinction in Goodwin or other cases whether a source was known to the journalist or not.
Mr O'Donnell said the tribunal wanted the Supreme Court to uphold the High Court order but there was "a chasm" between the High Court decision itself and how the tribunal sought to support it.
The "logical flaw" in the High Court's reasoning was that it made the order only because it believed it would not lead to identification of the source but could exculpate the tribunal as the source. However, this process of negativing sources could lead to positive identification of a source.
Mr O'Donnell said the tribunal was also inviting the Supreme Court to deprecate his clients' conduct in destroying the documents and to find this a factor for disproving their rights under Article 10. While the High Court has said such conduct was relevant to the balancing exercise to be conducted as to whether the order was necessary, it had not said the journalists' rights under Article 10 were any less as a result.
