Case Summary and Outcome

The High Court of Ireland held that a broadcaster was entitled to claim journalistic privilege over sources for a TV program which the plaintiff claimed was defamatory. Airline Ryanair sued Channel 4 in respect of broadcast statements regarding the safety of the airline and in the course of the proceedings requested documents that Channel 4 claimed were protected by journalistic privilege. The Court reasoned that in balancing the importance of enabling justice to be done against the importance of protecting journalist sources the balance came down in favor of non-disclosure because it was not satisfied that disclosure was an overriding requirement in the public’s interest or essential to exercise a legal right.

Facts

On August 12, 2013, Channel 4 broadcast a series called, ‘Secrets from the Cockpit.’ The first half of the program looked at twelve flights to Madrid, Spain that were diverted to Valencia, Spain in July 2012 due to adverse weather conditions. Three of the flights were chartered by Ryanair and all three flights issued a ‘fuel mayday’ before being able to safely land in Valencia due to the limited facilities at the smaller airport.  Channel 4 went on to discuss that this was not the first time Ryanair had issued “fuel maydays,” referencing an internal Ryanair memo from 2010 showing there had been three prior investigations into fuel emergencies. The program went on to criticize Ryanair for its lack of safety essentially alleging that the airline compromised the safety of passengers, crew and those living under the flight paths of Ryanair flights, particularly in the vicinity of airports, in pursuit of financial gain. The broadcast ended with interviews of Ryanair pilots stating their ‘lack of confidence in the official authorities charged with maintaining safety in air travel.’ Some pilots asked to remain anonymous during the broadcast.

On April 23, 2013, soon after the broadcast, Ryanair issued a plenary summons requesting damages, including aggravated damages, for Channel 4’s allegedly defamatory statements. In its defense filed on December 13, 2013, Channel 4 claimed that the impugned words meant that it had reasonable grounds to investigate Ryanair; that they consisted of honestly held opinion; and further that it was entitled to rely on the defense of fair and reasonable publication on a matter of public interest.

On December 12, 2014, Ryanair applied for discovery and following the exchange of some 2,000 plus documents, served Channel 4 with a ‘notice to produce’ on January 20, 2016. Channel 4 claimed journalistic privilege and/or litigation privilege over a significant number of documents.

Decision Overview

The Court addressed three issues in its judgment: the adequacy of the description of the documentation listed in Ryanair’s affidavit of discovery; journalistic privilege; and legal advice privilege/litigation privilege.

J. Meenan said that the legal basis for journalistic privilege was found in Article 40.6.1 (i) of the Irish Constitution and Article 10 of the European Convention on Human Rights and that the “Constitution clearly recognises the role of the media in the ‘education of public opinion’ which is regarded as being ‘a matter of such grave import to the common good.’ In order for the media to operate effectively, journalists must be able to protect their sources.” He also referred to the reliance placed by the Irish Supreme Court on the European Court of Human Right’s (ECtHR) decision in Goodwin v. The United Kingdom (1996) which stated that the protection of journalistic sources was essential to freedom of the press, and any attempt to compromise that protection cannot override Article 10 of Convention unless it is justified by an overriding requirement in the public interest. The Irish Supreme Court had held that the privilege was not absolute and said that in some cases it may be necessary to balance an individual’s privacy rights under Article 8 against journalistic privilege by asking specifically, how would the respective parties benefit if the responding parties were directed to reveal their sources? The Court quoted Goodwin to the effect that it will not be enough for the party seeking disclosure to merely show that he won’t be able to exercise his right or avert a legal wrong without disclosure and it will always be up to the judge to balance “the importance of enabling the ends of justice to be attained in the circumstances of the particular case on the one hand against the importance of protecting the source on the other hand” and that “it is only if the judge is satisfied that disclosure in the interests of justice is of such preponderating importance as to override the statutory privilege against disclosure that the threshold of necessity will be reached.” 

J. Meenan relied on case law, both domestic and international, to establish the following in connection with journalistic privilege: (1) the protection of sources, when necessary, also includes the information provided by the sources; (2) journalistic privilege can be overcome by other rights by carrying out a balancing exercise; (3) a heavy burden falls on the party that wishes to overcome the privilege who must show an overriding requirement in the public’s interest or prove that disclosure is essential to exercise a legal right.

J. Meenan then examined Ryanair’s arguments in support of disclosure. Firstly Ryanair argued that Channel 4 was not entitled to rely on journalistic privilege without swearing to the ‘full details of the assurances of confidentially allegedly given to each source.’ J. Meenan responded, that it is not incumbent upon a court “to embark on an exercise to establish what assurances were or were not given to sources and whether such assurances were sufficient to invoke the protection of journalistic privilege.” Rather, he feared that such action would lead to the source being revealed. Ryanair then argued that Channel 4 had waived the privilege by means of ‘over-circulation.’ J. Meenan dismissed this as irrelevant by saying that the whole point of journalistic privilege is to get information that is in the public’s interest circulating, that circulation may require the information to pass hands and does not diminish the privilege.

In carrying out the ‘balancing test’  J. Meenan took the following factors into account: the safety of passengers, crew and those on the ground was a matter of the most serious public interest; Ryanair sought to vindicate its good name and disclosure of the sources, in particular the four pilots would help, but the airline had neither submitted nor established that exposure of the sources was essential to a legal right; Ryanair intended to rely on Irish Aviation Authority and similar style reports in the substantive hearing; the identities of the pilots weren’t essential for Ryanair to be able to review the ‘appropriateness’ of its work/employment practices; Ryanair pleaded malice without the evidence to sustain such a claim; and, by invoking journalistic privilege, Channel 4 may have weakened its defense because it was unable to call the pilots to the stand without waiving such privilege.

In all these circumstances, J. Meenan found the balance to lie in favor of Channel 4’s assertion of journalistic privilege and did not direct the broadcaster to produce or permit inspection of documents over which the privilege was sought.