FIFTH SECTION

Application no . 29804/10 Colm KEENA and Gera l dine KENNEDY against Ireland lodged on 19 May 2010

STATEMENT OF FACTS

THE FACTS

The applicants are Irish nationals, born in 1960 and 1951, respectively. The y are represented by Mr. Andrew O ’ Rourke, a lawyer practising in Dublin . The facts of the case, as submitted by the applicants, may be summarised as follows.

The first applicant was a journalist employed by The Irish Times newspaper and the second applicant was the editor of that newspaper.

1. The anonymous source and the Tribunal

On 7 and 8 October 1997 Dáil Éireann and Seanad Éireann (both houses of the Irish Parliament) passed a resolution authorising the establishment of “The Tribunal of Inquiry into Certain Planning Matters and Payment s” (“the Tribunal”). It was, inter alia , to ascertain the identity of any member of parliament who had attempted to influence planning applications in relation to certain lands and whether such members had been influenced by the offer or receipt of any payments or benefits. It was later formally established and, from 2003, comprised three judicial members.

On 19 September 2006 the first applicant received, anonymously and unsolicited, documents comprising, at least, a copy of a letter of 29 June 2006 from the Tribunal to a businessman and of his reply. The disclosed documentation concerned alleged payments by the businessman to the Minister for Justice in 1993. The latter was in 2006 the Taoiseach (Prime Minister). The first applicant set about authenticating the information received and, once done, the second applicant considered the facts in the article to be true and that they raised a matter of legitimate and significant public interest. She also considered it her duty to publish since the information might not otherwise enter the public domain because she had been informed that the Taoiseach would attempt to have such payments declared outside of the Tribunal ’ s mandate.

On 21 September 2006 The Irish Times published the article on its front page. It was entitled “ Tribunal examines payments to Taoiseach ” and it explained that the Tribunal had contacted the businessman to investigate the alleged payments. It described the associates of both the Taoiseach and the businessman, considered from where the Tribunal ’ s initial information could have come, recorded the names of the persons who had refused to make a comment to The Irish Times on the subject and explained prior similar allegations about the Taoiseach .

The article caused considerable public controversy and extensive reporting. It was debated in Parliament where the Taoiseach was questioned.

On 21 September 2006 the Tribunal wrote to the second applicant. It expressed concern that the article appeared to have been based on a disclosed letter from the Tribunal which had been clearly marked “strictly private and confidential” and it requested an explanation. On 22 September 2006 the second applicant responded explaining that she had received unsolicited and anonymous information on an important matter of public interest which she had a duty to verify and publish.

On 25 September 2006 the Tribunal ordered the applicants, pursuant to the Tribunals of Inquiry (Evidence) Acts 1921 to 2004, to produce to the Tribunal all documents received by The Irish Times which led to the article. The second applicant responded on the same day that the applicants could not comply as the relevant material had been destroyed. Even if the newspaper still had any material of the type covered by the order, she disputed the right of the Tribunal to make the order. Producing any such material risked identifying a source so the order jeopardised the primary obligation of every editor and journalist to protect their sources and it was a matter of great importance in the public interest that this right was protected in the context of reporting in the public interest.

On 26 September 2006 the Tribunal issued Witness Summonses ordering the applicants to attend at the Tribunal, to produce all documents mentioned in its prior order and to answer all questions concerning their source.

On 29 September 2006 the applicants attended before the Tribunal, providing written and oral statements of evidence. They did not produce the documents requested and they refused to answer questions which they believed might assist the Tribunal in identifying their source.

On 5 October 2006 the Chairman of the Tribunal ruled on the applicants ’ failure to comply with its order and summonses. The article was based on confidential Tribunal material. Keeping Tribunal material confidential during the private investigation phase was important to avoid unnecessary speculation and harm to individuals and the dissemination of such material by the receiving parties was prohibited. The appropriate forum for airing such matters was the public sessions of the Tribunal. The applicants had breached the orders of the Tribunal. Since the Tribunal ’ s powers were limited, it would seek High Court orders to compel the applicants to comply with its orders. In so doing, it was protecting the integrity of its inquiries by taking all necessary steps to establish the identity of the parties who furnished the disclosed documents to The Irish Times and which led to the article.

2. The High Court

In February 2007 the Tribunal sought High Court orders, under the Tribunals of Inquiry (Evidence)(Amendment) Act 1997, compelling the applicants to comply with its order and the Witness Summonses. The Tribunal ’ s grounding affidavit noted the numerous allegations made within the remit of the Tribunal and that they were, in the first instance, investigated in private to determine whether or not they merited a public inquiry. This limited the damage (to the integrity of the inquiry, to public confidence in it, to the Tribunal and to individuals) caused by unfounded allegations. The utmost confidentiality had therefore to be observed during the private investigative phase. The suggestion that the source of the “leak” was within the Tribunal itself was of particular concern to it.

The first applicant submitted that confidential sources were regularly the origin of information, often contentious and newsworthy, that would otherwise not come to the attention of a reporter or, therefore, to the public. He explained in detail the importance journalists attached to maintaining the confidence of, and protecting, their sources. He had a right and a duty to refuse to reveal his sources/resist attempts to identify them and any failure in that regard would strongly discourage future disclosures on matters of significant and legitimate public interest which would be to the detriment of journalism and public life. The second applicant underlined that she published the article once the information had been verified, that it was an important matter of public interest and that it risked exclusion from the Tribunal ’ s mandate and thus from the public domain.

On 23 October 2007 the High Court delivered its judgment. It accepted that the information had been received unsolicited and anonymously.

On the one hand, the disclosed documentation had been marked confidential and its disclosure had not been authorised by the Tribunal. The Tribunal had the right to impose the confidentiality of material assembled in its private investigative phase, the functioning of which would be grossly impaired without enforceable confidentiality. The Tribunal had ample power to inquire into the source of the leak and to summon the applicants as it had. The public perception that material provided to the Tribunal under an assurance of confidentiality could be “leaked” to the media would be very damaging to the functioning of the Tribunal, would lead to a loss of public confidence in the Tribunal and would deter members of the public from voluntarily cooperating with it. On the other hand, the enforcement of this confidentiality had to be balanced against the applicants ’ entitlement as journalists, under Article 10 of the Convention, not to be compelled to disclose their sources. The balancing of those conflicting interests was a task which, in a democratic society based on the rule of law, was reserved for the courts. Destroying the documents as the applicants did after service of the summonses was “an astounding and flagrant disregard of the rule of law” which usurped the proper role reserved to the courts. The destruction of the disclosed documentation was “an affront to democratic order which, if tolerated, was the surest way to anarchy”. Great weight had to be given to that act of the applicants in striking the correct balance between the relevant rights and interests.

In principle, where anonymous communications were concerned, the privilege against non-disclosure should not be invoked or only the slightest of weight should be attached to it because, if a journalist could not identify the source, it was nonsense to say that there was a professional obligation to protect it. Since the documents had been destroyed there was little or no risk that the questions proposed to be asked would lead to the identification of the source. Only very slight weight was therefore to be attached to the applicants ’ privilege against disclosure of their sources. Establishing that the Tribunal itself was not the source of the “leak” was a legitimate aim and a pressing social need. In this latter respect, the Tribunal had emphasised the public interest in confidentiality during its investigative phase and the potential damage to breaching it including an inevitable loss of confidence in the integrity of the process and a significant reduction in the public ’ s voluntary co-operation in its inquiry. The High Court concluded that the applicants ’ privilege against disclosure of sources was overwhelmingly outweighed by the pressing social need to preserve public confidence in the Tribunal and, since there were no other means by which this could be done other than the inquiry undertaken by the Tribunal, the orders were “necessary in a democratic society”. It granted the reliefs sought by the Tribunal. The applicants appealed.

3. Judgments of the Supreme Court of July and November 2009

On 31 July 2009 Judge Fennelly delivered the Supreme Court ’ s judgment (Murray C.J. as well as Geoghegan , Macken and Finnegan JJ. concurred). The Supreme Court judgment reviewed case-law of this Court and of the US Supreme Court on a journalist ’ s right to protection sources. It confirmed that the documents disclosed to the applicants were evidently highly confidential and that the Tribunal had the power to investigate an unauthorised disclosure of its confidential information. The appeal turned entirely on the way in which the High Court struck the balance between the interests of the Tribunal in uncovering the source of the disclosure and those of the applicants in protecting their source.

The Supreme Court agreed with the High Court that the courts could and should not abdicate their responsibility to decide whether, in an individual case, the balance of interests would require a journalist to disclose his or her source. A unilateral decision by a journalist to destroy evidence with intent to deprive the courts of that jurisdiction intended to subvert the rule of law. The Supreme Court did not therefore disagree with the language used by the High Court as regards the applicants ’ destruction of the documents . However, the Supreme Court differed from the High Court as to the weight to be accorded to the applicants ’ conduct in the relevant balancing exercise:

“ 63 . . . . Nonetheless, I have to accept that the issue is not whether that act was a wrongful one and deserving of the opprobrium applied to it by the High Court, but the narrower question of whether, in circumstances where the documents no longer exist, there is a logical or causal link between that act and the order made. It does not appear to me that there is. The order now to be made has to be justified by the situation as it now exists and not by the need to mark disapproval of the unquestionably “reprehensible conduct” of the appellants. For the same reason, I do not think that the High Court was correct in reaching the conclusion that the “destruction of these documents by the defendants is a relevant consideration to which great weight must be given in striking the correct balance between the rights and interests at issue on this application.”

The Supreme Court also disagreed with the High Court ’ s view as to the implications of the anonymity of the source. In the first place, while greater weight attached to a journalist ’ s privilege to protect a source whose identity was known to the journalist, that privilege remained relevant even if the source was anonymous. In addition, on the facts, the Supreme Court could not identify any concrete benefit to questioning the applicants to discover if the letter to the businessman came from the Tribunal.

The Supreme Court therefore concluded:

“68. Looking at the High Court judgment as a whole, ... the great weight which it attached to the reprehensible conduct of the appellants in destroying documents led it to adopt an erroneous approach to the balancing exercise.

69. According to the reasoning of the European Court in Goodwin , an order compelling the appellants to answer questions for the purpose of identifying their source could only be “justified by an overriding requirement in the public interest.” Once the High Court had devalued the journalistic privilege so severely, the balance was clearly not properly struck. On the other side, I find it very difficult to discern any sufficiently clear benefit to the Tribunal from any answers to the questions they wish to pose to justify the making of the order.”

The appeal was allowed and the matter of costs was adjourned.

On 18 November 2009 submissions on costs from both parties were heard by the Supreme Court. The applicants sought an award of legal costs in accordance with Order 99 of the Rules of the Superior Courts, subsection 4 of which provides that the costs of “every issue of fact or law raised upon a claim or counterclaim shall, unless otherwise ordered, follow the event”. The Tribunal sought an order for costs in their favour given the applicants ’ decision to destroy the documents.

On 26 November 2009 Murray C.J. delivered the judgment of the Supreme Court ( Geoghegan , Fennelly , Macken and Finnegan J.J. concurred). The Supreme Court recalled the High Court ’ s criticism of the applicants ’ destruction of the documents. Citing also from paragraph 63 of the Supreme Court ’ s judgment of July 2009, he pointed out that:

“... it was the very act of destroying the document that decisively shifted the balance and deprived the Tribunal of any effective power to conduct an inquiry and, by extension, deprived the courts of any power to give effect to any order of the Tribunal. This act was calculated and deliberate and was performed with that clear purpose in mind. That “reprehensible conduct” determined the course which these proceedings took and was at the root of balancing the issue which the Court had to determine.”

The applicants ’ conduct was directly related to, and was intended to achieve, the eventual outcome of the case.

As to making an award against a successful party, there was no fixed rule or principle determining the ambit of the court ’ s discretion and, in particular, no overriding principle that it had to be exercised in favour of an unsuccessful plaintiff in specified circumstances or in a particular class of case (citing Dunne v Minister for the Environment [2008] I.R. 775 at 780, per Murray C.J.). More generally, it was not in doubt that the court had jurisdiction, to be exercised in exceptional cases, to order a successful party to pay the costs of the unsuccessful party. He continued:

“The behaviour of the [applicants] was such as to deprive them of their normal expectation that the Court would, in the exercise of its discretion, award costs in their favour in accordance with Order 99. The Tribunal was, on the other hand, fully entitled to conduct its inquiry and to seek the assistance of the High Court. The Court will, in these exceptional circumstances, order that the respondents are entitled to recover the costs of both the High Court and this Court from the appellants.”

On 28 April 2010 the applicants received advice in writing from a firm of legal costs accountants that the Tribunal ’ s costs would be valued on taxation in the approximate sum of EUR550,000.

COMPLAINTS

The applicants complain under Article 6 that the award of costs against the successful party was unfair and unreasonable.

The applicants also complain under Article 10 that the costs award was not prescribed by law because neither the scope of the discretion for which Order 99 allowed nor its exercise protected against arbitrariness or was foreseeable. In addition, the costs order did not pursue a legitimate aim since it aimed at penalising the applicants. Moreover, the costs order was not “necessary in a democratic society”: the applicants acted to protect their source; the Supreme Court had found the destroyed documents not relevant to the question of journalistic privilege; the fact and amount of the costs order was capable of having a chilling effect on press freedom in Ireland ; and the scope for restricting speech on a matter of high public interest about politicians was very limited.

The applicants invoke Article 13, in con junction with Articles 6 and/or 10, complaining that they did not have an effective domestic remedy.

The applicants also maintain that the costs order against them breached their rights under Article 1 of Protocol No. 1.

The applicants further complain under Article 14, in conjunction with Articles 6, 10, 13 and/or Article 1 of Protocol No. 1, about an unnecessary difference in treatment of persons in analogous situations.

QUESTIONS

1 . Ha ve the applicant s exhausted all effective domestic remedies as required by Article 35 § 1 of the Convention?

2. Has there been a violation of the applicants ’ right to freedom of expression guaranteed by Article 10 as a result of the order for costs against them of the 26 November 2009, having regard to the reasoning of the Supreme Court in its judgment of 31 July 2009?