Irish Times order ‘restricts freedom of expression’

A HIGH Court order requiring Irish Times editor Geraldine Kennedy and public affairs correspondent Colm Keena to answer questions from the Mahon tribunal about the source of an article on financial payments to former Taoiseach Bertie Ahern is “an impermissible restriction” on the right to freedom of expression, the Supreme Court was told yesterday.

The story about payments was at the very heart of the public interest and dominated public discourse after publication in September 2006 into 2007 and through a general election, Donal O’Donnell SC said.

There was no dispute about the article’s accuracy but, when the information came into the possession of the Irish Times, it was not then apparent it would ever have been made public as it was not within the tribunal’s terms of reference, being gathered at its private stage.

The High Court decision paid no adequate regard to the duty of journalists to impart this information to the public, Mr O’Donnell added.

Counsel was opening the appeal by Mr Keena and Ms Kennedy against the October 2007 three-judge High Court order requiring them to answer questions relating to the source of the article.

A stay on that order continues pending the outcome of the appeal before the five judge court, presided over by the Chief Justice, Mr Justice John Murray.

The September 21, 2006 article, written by Mr Keena, disclosed the tribunal was investigating financial payments to Mr Ahern when he was Minister for Finance in 1993.

The tribunal claims the article was based on a confidential letter sent by it during its private investigative stage to a businessman, David McKenna.

After both journalists refused to answer the tribunal’s questions about the article, the High Court ruled the Irish Times privilege against disclosure of sources was “overwhelmingly outweighed” by the “pressing social need” to preserve public confidence in the tribunal.

Opposing the appeal, Michael Collins SC, for the tribunal, said there was no dispute about the right to freedom of expression and the tribunal accepted the importance of the role of journalists in that regard.

The tribunal’s concern was to protect the confidentiality of its private investigative phase.