Confidentiality of sources meant newspapers constantly faced the problem of proving serious allegations, the House of Lords was told yesterday.
If Mr Fergus Finlay, former adviser to Mr Dick Spring, had not waived confidentiality as a source of the Sunday Times article in the libel case taken by Mr Albert Reynolds, the newspaper would have been at a much greater disadvantage when facing the jury, the appellant committee of five law Lords was told. The Sunday Times is appealing a legal issue on qualified privilege to the House of Lords arising out of the libel case Mr Reynolds took against the newspaper.
Mr Reynolds was present at the hearing yesterday. Yesterday, the question of the confidentiality of sources arose after it was contended that failure to disclose sources constituted malice. If malice was alleged, lawyers had to advise editors about the serious risk of fighting a libel case.
The newspaper contends that the defence of qualified privilege protects the publication of any defamatory words arising out of political discussion, defined as information, opinions and arguments concerning government and political matters, national and international.
Last year, Mr Reynolds won a retrial in the Court of Appeal in the case. The Sunday Times lost its argument that it had qualified privilege when it published the article in November 1994 at the time the Fianna Fail-Labour coalition collapsed and Mr Reynolds resigned as Taoiseach.
In November 1996, a London High Court jury found Mr Reynolds was libelled but awarded him zero damages which the judge altered to one penny.
Yesterday, Lord Lester QC, for the Sunday Times, told the committee that when a newspaper covered such events as a parliament, council or courts, then, providing it was a fair and accurate report, the journalist did not have a duty to check whether what was said was the truth.
This was a class of privilege based on institutional reporting.
The sting of the article was that Mr Reynolds misled the Dail but the facts were not based on institutionalised reporting. It was based on the editors' and newspaper's evaluation of what came into their possession, and on which they relied. They published because they considered it was the truth. Lord Cooke asked why the newspaper had not reported what Mr Finlay had said.
Lord Lester said Mr Finlay was at that stage a confidential source.
What Mr Finlay told the Sunday Times was in confidence and it would have been in breach of the newspaper's ethical duty to reveal his identity, he added. Lord Nicholls said a vital piece of evidence in a case was not there. A newspaper could say it had a reputable source but could not disclose it because it had promised confidentiality.
Lord Lester told the committee newspapers were constantly facing the problem of proving serious allegations.
"The Sunday Times had to persuade Mr Finlay in the end to waive confidentiality in the course of the [Reynolds] case and he did," Lord Lester said. "If he hadn't, the Sunday Times would have been at a much greater disadvantage when it faced the jury."
Lord Nicholls, chairman of the appellant committee, asked if Lord Lester was saying that a free press should not be the object of constraints.
Lord Lester replied that it related to newspapers' conduct.
If there was lack of reasonable care on the part of a newspaper, it would undoubtedly affect a jury, he told the committee.
The case continues today when lawyers for Mr Reynolds will begin their submissions.