Case Summary and Outcome

In this case the ECtHR was of the opinion that the deliberate destruction of journalistic “sources” in order to prevent access by the judiciary could not be justified under Article 10 European Convention on Human Rights (ECHR). In the summer of 2009, the Irish Supreme Court issued a landmark opinion, overturning an order issued against the newspaper The Irish Times to answer questions about a leaked document it had received from an anonymous source. Few months later, however, the Supreme Court decided that the newspaper was required to pay the legal costs of the government-created body that had sought the order, because the newspaper had destroyed its copy of the leaked document before the legal action had commenced. The ECtHR ruled in Keena v. Ireland that the imposition of costs on the newspaper, even though its action was successful, was not a violation of Article 10 ECHR. According to the Court the ECHR does not confer on individuals the right to take upon themselves a role properly reserved to the courts. As the domestic courts underscored, this is, effectively, what the applicants did through the deliberate destruction of the very documents that were at the core of the Tribunal’s inquiry. Even if, as the applicants submitted, they did not intend, at that point in time, to prevent full judicial examination of the issue, this was clearly the effect of their actions.

The ECtHR does not accept that the applicant journalists could not have reasonably foreseen that the Tribunal would react as it did when confidential information was published in a national newspaper or that it would take such steps as were available to it to uphold the integrity of the inquiry. It was after the Tribunal had signaled its right to have recourse to the courts and after it had ordered the production of documents that the applicant journalists decided to destroy the evidence that would be central to the courts’ resolution of the competing public interests in issue.  While the applicants complained of the chilling effect of the costs order on freedom of expression, the ECtHR considers that the order for costs in the circumstances of this case can have no impact on public interest journalists who vehemently protect their sources yet recognize and respect the rule of law. The Court can discern nothing in the costs ruling to restrict publication of a public interest story, to compel disclosure of sources or to interfere in any other way with the work of journalism. What the ruling signified was that all persons must respect the role of the courts, and that nobody, journalists included, may usurp the judicial function. The European Court considers that the true purport of the Supreme Court’s ruling was to signal that no party is above the law or beyond the lawful jurisdiction of the courts. Therefore, the ECtHR concludes that there was no interference with the applicants’ right to freedom of expression, and the complaint is considered manifestly ill-founded. [1]

[1] For a critical analysis, see R. Ó Fathaigh,“Imposing Costs on Newspaper in Successful Source-Protection Case Did Not Violate Article 10”, Strasbourg Observers Blog 17 November 2014, http://strasbourgobservers.com/2014/11/17/imposing-costs-on-newspaper-in-successful-source-protection-case-did-not-violate-article-10/#more-2691.

Facts

In 1997, the Irish Parliament passed a resolution establishing a special tribunal, called the Tribunal of Inquiry into Certain Planning Matters and Payments (the Tribunal), which would be investigating alleged bribery of MPs. The two applicants in this action – Colm Keena and Geraldine Kennedy – were a journalist and editor of the Irish Times, respectively; the Times eventually received correspondence from the Tribunal to a businessman who may have bribed an MP. Keena authenticated the documentation and Kennedy, after considering the public interest and the probability that the documents were true, published an article discussing the contents of the letter on September 21, 2006.

That same day, the Tribunal wrote to Kennedy and explained its concerns that the letter the Irish Times discussed was marked “strictly private and confidential.” The next day, Kennedy responded that she had received the letter from an anonymous source and published it due to the extreme public interest in it. Three days later, the Tribunal ordered the applicants to produce any documentation related to the article, and on September 26, 2006, both were ordered to appear before the Tribunal. Three days thereafter, both appeared but did not produce the requested documents. Having failed to comply with the Tribunal’s orders, the Tribunal, a judicial body of limited jurisdiction, notified Keena and Kennedy that it would be seeking orders from the High Court to produce the documents. In a 2007 order, the High Court granted the relief requested by the Tribunal and ordered Keena and Kennedy to produce the documents that had been leaked to the Irish Times. At some point during these judicial proceedings, one or both of the applicants decided to destroy the letter that they had received instead of potentially being forced to turn it over to the Tribunal or to any court.

The applicants appealed the High Court’s order, and in a decision dated July 31, 2009, the Supreme Court reversed the High Court’s decision. Although the Supreme Court agreed that the applicants’ decision to destroy the documents in question was reprehensible, this court ultimately disagreed with the High Court’s legal reasoning and found that there would essentially be no benefit in the Tribunal questioning Keena and Kennedy as to the source of the documents. However, in a later judgment dated November 26, 2009, the Supreme Court awarded costs in favor of the Tribunal. The Supreme Court found that the behavior of the Irish Times in destroying the documents “deprived” them of their right to later receive costs but that the Tribunal was entitled to costs since it was “fully entitled to conduct its inquiry and seek the assistance of the High Court.” In its discretionary powers, the Supreme Court awarded the Tribunal approximately €550,000 in costs. Therafter, the applicants appealed to the European Court of Human Rights (ECtHR), arguing that “the award of costs against the successful party was unfair and unreasonable.”

Decision Overview

In its decision, the ECtHR quickly concluded that, essentially, it was without jurisdiction to consider the applicants’ appeal since “the Supreme Court’s ruling on costs [could not] be characterised as an interference with the applicants’ right under Article 10 to protect the secrecy of the source who provided them with the confidential documents of the Tribunal.” [1]

The court rejected the applicants’ argument that the Tribunal should have avoided its investigation of the applicants’ receiving the confidential in the first place. The ECtHR instead found that the protection of sources compared to the to the Tribunal’s interest in maintaining confidentiality is a balancing analysis that only the domestic Irish courts should – and did – undertake. Additionally, the Irish courts, including both the High Court and the Supreme Court, relied extensively on the European Convention of Human Rights Article 10 in their analyses. Therefore, there was no indication that the domestic courts had deprived the applicants of their ability to assert Article 10 rights and violations.

As far as the award of costs, the ECtHR concluded that the Supreme Court acted in its discretion when it concluded that the applicants’ intentional destruction of the documents deprived them of their right to receive costs – even though they were successful – and, in fact, led to the opposite outcome of the Tribunal being entitled to costs. In other words, since the applicants’ had taken matters into their own hands and deprived the courts of their ability to review the disclosed documents, Keena and Kennedy were liable to pay the Tribunal’s costs in conducting a valid inquiry into how the Irish Times received the confidential documentation.

The court further dismissed the applicants’ complaints under Articles 1, 6, 13, and 14 of the ECHR and affirmed the Irish Supreme Court’s award of costs in favor of the Tribunal.

[1] Para. 45 of the decision, http://hudoc.echr.coe.int/eng?i=001-147707#{“itemid”:[“001-147707”]}.