A Privilege Worthy of Protection: Journalists and their Sources
| Author | Diarmaid Murphy |
| Position | Senior Sophister LLB Candidate, Trinity College Dublin |
| Pages | 97-120 |
A
PRIVILEGE
WORTHY
OF
PROTECTION:
JOURNALISTS
AND
THEIR
SOURCES
DIARMAID
MURPHY*
Introduction
This article
will
put
forward three
propositions.
First,
an
explanation
as
to
why
it
is
necessary
to
protect
a
so-called
"journalistic
privilege"
will
be
provided.
Second,
the
most
suitable
method
by
which
the
law
should
protect
this
privilege
will
be
suggested.
Finally,
an
analysis will
be
made
regarding
the
extent
to
which
journalistic
privilege
has
been
protected
by
law
in
Ireland, under
the
and
in
Canada.
"Journalistic privilege"
refers
to
a
journalist's
entitlement
not
to
be
judicially
compelled
to
reveal
the
identity
of
a
confidential
source
or
to
divulge
any
information which would
be
likely
to
lead
to
the
identification
of
the source.
The
question
of
journalistic
privilege
was
recently addressed
in
Ireland
in
Mahon
Tribunal
v
Keena.
1
However,
Keena
failed to clarify
the
Irish position
in
relation
to
journalistic
privilege.
The
Supreme
Court's
decision
to award
costs
against
the
appellants
appears
particularly
contentious,
2
and
the
appellants
have
indicated
that
the
decision
will
be
appealed
to
the
European
Court
of
Human
Rights.'
This article
shall
examine
both
the
framework
available
for
recognising
a
journalistic
privilege under
the
and
the
extent
to
which
the
European
Court
of
Human
Rights
has
proved
itself
willing
to
properly
interpret
these
Convention provisions. For
those advocating
a
strong
journalistic
privilege,
the approach
of
the
Supreme
Court
of
Canada
is
more
restrictive
and
shows
a
marked contrast
to
ECHR-based
jurisprudence.
Two
recent decisions
of
the
Supreme
Court
of
Canada
are
of
particular
significance,
and
as
such,
warrant
careful
analysis.
4
Senior
Sophister
LLB
Candidate, Trinity College
Dublin.
The
author
would
like
to
express
his
sincere
thanks
to
Dr
Eoin
O'Dell
for
his
insights
and
discussion
of
the
issues
discussed
in
this
article.
All
errors
and
omissions
are
entirely the
author's.
'Mahon
Tribunal
v
Keena
[hereinafter
Keena].
2
78.
3
Carol
Coulter,
"Irish
Times applies
to
over
costs"
The
Irish
Times,
29
May
2010.
4
R
v
National
Post
[2010]
1
SCR
477;
Globe
and
Mail
v
Canada
Unreported
judgment
[2010]
SCC
41,
22
October
2010.
C
2011
Diarmaid
Murphy
and
Dublin
University
Law
Society
Trinity
College
Law
Review
Why
journalistic
privilege
merits
legal
protection
and
the
manner
in
which
it
ought
to
be
protected
"Protection
of
journalistic
sources
is
one
of
the basic
conditions
for
press
freedom
...
Without
such
protection,
sources may
be
deterred
from
assisting
the
press
in
informing
the
public
on
matters
of
public
interest."5
So
declared
the
European
Court
of
Human
Rights
in
Goodwin
v
United
Kingdom.
The
above
dictum
from
Goodwin,
repeated almost
as
a
matter
of
course
in
the
subsequent
corpus
of
case-law, espouses
the
core
principle
upon which
the
rest
of
this
article
seeks
to
expand.
It
justifies
the
protection
of
journalistic
privilege
and
it
encapsulates
the
connection
between confidential
sources,
the
press
and
the
public.
Such
protection
may
be
justified
in
the
following
manner:
in
order
for any
democracy
to
function
properly,
citizens
are
entitled
to
be
freely
informed
of
matters
of
importance
to
them. Occasionally,
information
of
public interest
is
provided
by
a
source
who,
for
whatever
reason,
wishes
for
their
identity
to
be
kept
confidential
by
the
journalist.
Therefore,
the
provision
of
the
confidential
information
to
the
journalist,
if
not
strictly
contingent
upon
an
undertaking
of
confidentiality,
is
at
the
very
least
based
upon
an
understanding
that
the
journalist
will not
reveal
the source's
identity.
If
the
journalist
could
be
judicially
compelled
to resile from
their
earlier
undertaking
of
confidentiality,
the
relationship
of
trust
and
confidence
between
journalist
and
confidential
source
would
be
undermined.
This
could
also lead
to
a
"chilling
effect,"
the
negative
impact
which
an
obligation
to
disclose
would
have
on
other
sources.
If
there
was
a
general feeling
or,
indeed,
specific
knowledge
among
potential
sources
that
there
is
a
likelihood
of
undertakings
of
confidentiality
later
being
overruled
by
means
of
judicial
compulsion,
it
would
impact
negatively
on
the
likelihood
of
potential
future
sources
being
willing
to
co-operate.
In
1971,
Professor
Vince
Blasi conducted
a
comprehensive empirical
study
that
involved interviewing
and
questioning
editors
and
journalists
familiar
with
the
compelled
disclosure
problem.
6
He
concluded
[t]he
adverse effect
of
the
subpoena
threat
has
been
primarily
in
"poisoning
the
atmosphere"
so
as
to make
insightful, interpretive
reporting
more
difficult
...
Press subpoenas
damage
source
Goodwin
v
United
Kingdom
(1996)
22
EHRR
123,
at
[39]
[hereinafter
Goodwin].
6
Professor
Vince
Blasi,
"The
Newsman's
Privilege:
An
Empirical
Study"
(1971)
70
Michigan
Law
Review
229.
[Vol. 14
98
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