Eamon Corcoran was a journalist involved in the publication of a local paper called The Democrat. Mr Corcoran claimed he attended the aftermath of the incident and later uploaded photos and videos of it to The Democrat’s website. He was interviewed under caution by the gardaí, but refused to reveal his sources, asserting ‘journalistic privilege’.

On 2 April 2018, the gardaí applied ex parte to a district judge in Roscommon for two search warrants – one in respect of Mr Corcoran’s home, the other in respect of The Democrat’s premises.

The application was made pursuant to section 10 of the Criminal Procedure (Miscellaneous Provisions) Act 1997. These warrants were granted and, on 4 April, Corcoran’s phone was seized from his premises. The phone was powered off, and Corcoran refused to disclose its password.

Almost immediately, judicial review proceedings were instituted by Mr Corcoran. Justice Simons in the High Court held that An Garda Síochána had acted lawfully and made a limited order for the examination of the content on the mobile phone. Corcoran appealed this order. The Garda Commissioner cross-appealed the exclusion of all contact details from the data ordered to be disclosed.

The paper

The Court of Appeal was thus faced with a direct test to so-called ‘journalistic privilege’ and the obligation or otherwise of journalists to disclose their sources. The court found that the seeds of the concept of journalistic privilege were laid in article 40.6.1.i of the Constitution, where the State guarantees: “The right of the citizens to express freely their convictions and opinions … 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 the State.”

The court noted that, in actual fact, there is no such thing as ‘journalistic privilege’. In this regard, the court observed Justice Hogan’s 2012 comments in Cornec v Morrice, where he stated: “While I have thus far loosely spoken of a journalistic privilege, there is, in fact, in strictness, no such thing. The protection is rather the high value which the law places on the dissemination of information and public debate. Journalists are central to the entire process.”

The court further noted Justice Hogan’s observations, at paragraph 43 of his judgment, where he stated that “the constitutional right in question would be meaningless if the law could not (or would not) protect the general right of journalists to protect their sources” [emphasis added].

Network

In determining the applicable principles to be applied, the Court of Appeal gave particular consideration to Mahon v Keena (2007). This case arose when a journalist in The Irish Times received an anonymous and unsolicited confidential communication that had been sent to a witness in the Mahon Tribunal.

The members of the tribunal sought to investigate the leak, and the defendants deliberately destroyed the copy of the document with the information. They also refused to answer questions that might provide assistance in identifying the anonymous sources.

Justice Fennelly considered the European Convention on Human Rights Act 2003 and noted that it was enacted to give further effect to the European Convention on Human Rights (ECHR) in Irish law, subject to the Constitution. In particular, he noted that, in interpreting and applying any statutory provision or rule of law, the court should do so in a manner compatible with the State’s obligations under the ECHR.

The court specifically noted that judicial notice should be taken of any judgment of the European Court of Human Rights (ECtHR) established under the ECHR, of any decision of the European Commission of Human Rights, and any decision of the Committee of Ministers established under the Statute of the Council of Europe.

Justice Fennelly endorsed the seminal 1996 decision of Goodwin v United Kingdom, where a company sought the disclosure from a journalist of information of a confidential and secret character. Justice Fennelly noted that the ECtHR laid emphasis on the need for any restriction on freedom of expression to be “convincingly established”.

Spotlight

Justice Costello in Corcoran stated that the decision of the Supreme Court in Mahon v Keena establishes that an order compelling journalists to answer questions for the purpose of identifying their source could only be justified by an overriding requirement in the public interest, or a pressing social need for the imposition of a restriction or encroachment upon the right to freedom of expression.

The Court of Appeal further considered the 1974 case of Re Kevin O’Kelly, a fascinating case where Mr O’Kelly was a journalist who interviewed an individual who was allegedly the chief of staff of the IRA. The individual was charged with being a member of a proscribed organisation.

O’Kelly was called as a prosecution witness and refused to answer questions on the matter, stating that it would be a breach of confidence to identify a source. The court noted the obiter dicta comments of Justice Walsh, when he stated that “journalists or reporters are not any more constitutionally or legally immune than other citizens from disclosing information received in confidence”.

The Court of Appeal also examined the more recent case of Ryanair Limited v Channel 4 Television Corporation (2017), where Ryanair sued Channel 4 for defamation. The court had to balance the competing rights of a journalist’s ability to protect their sources, and the right of a party to vindicate their good name. Justice Meehan noted that the protection afforded to journalists extends beyond their sources and to the information so provided.

He also noted that, unlike other forms of privilege, journalistic privilege is not absolute. He concluded: “A heavy burden rests on the person who seeks disclosure of journalistic source(s). The court must be satisfied that such disclosure is justified by an overriding requirement in the public interest, or is essential for the exercise of a legal right.”

The front page

Following this review of case law, the Court of Appeal very helpfully synopsised the current law into 28 principles to be applied when considering journalistic privilege.

They serve as an essential guide to any practitioner in this area, and may be briefly summarised:

1. Journalistic privilege should first be considered under the protections in article 40.6.1.i of the Constitution,
2. The court considers the protections under article 40.6.1.i to be largely the same as those under the ECHR,
3. These protections are to be attributed a high value,
4. The court should interpret laws in a manner compatible with the ECHR,
5. Judicial notice must be taken of the ECHR and the judgments of the ECtHR,
6. The constitutional protection of article 40 would be meaningless if journalists’ sources were not protected,
7. The right to protect sources is not absolute,
8. The case for overriding journalistic privilege must be “convincingly established”,
9. It is necessary for a judge to balance the competing rights,
10. A judge must apply “special” or “careful” scrutiny in their examination,
11. The onus of proof is on the party seeking to interfere with the right,
12. The court may only order disclosure of sources if there is an overriding requirement in the public interest or pressing social need,
13. The interference must be prescribed by law,
14. The interference must be for the furtherance of a legitimate interest,
15. The interference must be necessary,
16. The interference should be proportionate,
17. An order to search a journalist’s home is seen as a more drastic measure than an order to divulge a source,
18. Not every person who provides information is a ‘source’ entitled to protection,
19. An order to surrender journalistic material that may identify a source is an interference with journalists’ rights,
20. This interference exists, even if the source is not a source that attracts journalistic privilege under the ECHR,
21. The review by the judge may be ex parte,
22. When the review is made ex parte, the ‘full picture’ must be put before the court,
23. The court must be able to prevent unnecessary access to sources,
24. The judge should be able to make a limited disclosure order to protect sources,
25. Unless urgent, the review should take place before the seizure,
26. A review that takes place after is not compatible with the right to confidentiality,
27. An ex post facto review cannot retrospectively authorise a search that is invalid for breach of these requirements,
28. If urgent, it is permissible to seize, but not access, the material prior to the review of the court.

Justice Costello found that the gardaí were under an obligation to make full disclosure at the time the warrant was sought, so that the district judge could “properly balance the competing rights of the public interest in the investigation and prevention of crime and the rights of journalists, their sources, and the general public in the protection of journalistic sources from disclosure”.

The court found that the trial judge was, therefore, wrong to hold that the District Court had no jurisdiction to consider the issue of journalistic privilege. The court found that the gardaí had failed to bring matters of relevant law and fact to the attention of the District Court, and that the warrant should therefore be quashed. The court thus ordered the return of Mr Corcoran’s phone.

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This carefully crafted judgment synopsises and clarifies the current law relating to the disclosure of journalistic sources. In these globally turbulent times, it is a welcome reassertion of the strong protection afforded to journalists under our Constitution and the key role they play in the maintenance of our democratic freedoms.

It should not be forgotten, however, that the High Court did initially order access to a journalist’s phone. This case serves as a cautionary reminder of how quickly freedom of expression can be limited, and how careful the courts must be in exercising the delicate balancing act between the pursuance of so-called public interest and the dismantling of the architecture of democracy itself.

Graham P Kenny is a partner at Eversheds Sutherland, Dublin.

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