There is an inherent tension between the freedom of public expression and comment and the need for courts to protect their authority and integrity, in the context of contempt of court proceedings.
The European Convention on Human Rights protects freedom of expression. However, it also recognises that the courts have a legitimate interest in protecting the administration of justice. However, the Convention does not entitle courts to censor reporting the facts as they appear, without good objective reason.
The Constitution also protects freedom of expression. It also recognises the requirements for the due administration of justice. The Irish courts reconcile competing Constitutional interests in many contexts, including in the context of contempt of court.
Contempt raise issues in relation to the constitutional principle, which guarantees freedom of expression in the press. This guarantee permits limitations or restrictions in the interest of public order, morality and the authority of the state.
The Constitution provides also, that justice shall be administered in public while contemplating restriction of this principle in certain cases. The general requirement that case be heard in public raises issues regarding reporting of legal proceedings.
Both the Irish constitution and European Convention on Human Rights permit certain court proceedings to take place in private as necessary. Cameras and audio recoding are not allowed in courts in Ireland. This includes both movie cameras and photographs.
The exclusion of the public should be exceptional and there must be objective reasons. In practice this is permissible in a relatively small category of cases, where good objective reasons apply.
Publication of Material
Pre-trial publicity may jeopardise a fair trial. There must be a real risk of an unfair trial.
In some cases, it may be justified for a judge to prevent publication of particular materials or photographs or to make such other orders as are necessary to protect the fairness of the trial. The European Court of Human Rights has accepted that this may be permissible in principle, but that there must be good reasons justifying such a course.
A broad ban which is not tailored to the need which is to be protected, is unlikely to be consistent with the Convention.
A journalist does not have a general right or privilege in respect of his sources. There have been a number of cases where journalists have been found guilty of contempt of court for refusing to disclose sources. There is no general immunity from answering a question, where information is received in confidence.
The status of journalistic sources has been considered by the European Court of Human Rights. The court requires the balancing between the rights asserted and those protected. If the interests in requiring an answer to the question do not outweigh the interest in protecting the source, then it would be in consistent with the Convention to require compulsory disclosure.
The court is to balance the interests of the a free press and freedom of expression against the need to do justice in an individual case. Measures taken to compel disclosure, must be necessary in the public interest.
Recognition of Limited Journalists’ Privilege
The Irish courts have recognised a limited privilege in recent years. The Court of Appeal summarised the current position with journalistic privilege in 2022.
- Journalistic privilege should first be considered under the protections in article 40.6.1.i of the Constitution,
- The court considers the protections under article 40.6.1.i to be largely the same as those under the ECHR,
- These protections are to be attributed a high value,
- The court should interpret laws in a manner compatible with the ECHR,
- Judicial notice must be taken of the ECHR and the judgments of the ECtHR,
- The constitutional protection of article 40 would be meaningless if journalists’ sources were not protected,
- The right to protect sources is not absolute,
- The case for overriding journalistic privilege must be “convincingly established”,
- It is necessary for a judge to balance the competing rights,
- A judge must apply “special” or “careful” scrutiny in their examination,
- The onus of proof is on the party seeking to interfere with the right,
- The court may only order disclosure of sources if there is an overriding requirement in the public interest or pressing social need,
- The interference must be prescribed by law,
- The interference must be for the furtherance of a legitimate interest,
- The interference must be necessary,
- The interference should be proportionate,
- An order to search a journalist’s home is seen as a more drastic measure than an order to divulge a source,
- Not every person who provides information is a ‘source’ entitled to protection,
- An order to surrender journalistic material that may identify a source is an interference with journalists’ rights,
- This interference exists, even if the source is not a source that attracts journalistic privilege under the ECHR,
- The review by the judge may be ex parte,
- When the review is made ex parte, the ‘full picture’ must be put before the court,
- The court must be able to prevent unnecessary access to sources,
- The judge should be able to make a limited disclosure order to protect sources,
- Unless urgent, the review should take place before the seizure,
- A review that takes place after is not compatible with the right to confidentiality,
- An ex post facto review cannot retrospectively authorise a search that is invalid for breach of these requirements,
- If urgent, it is permissible to seize, but not access, the material prior to the review of the court.
Contempt of court takes effect in the context of competing interests. There is a need to protect those involved in legal proceedings from prejudice. There is a need to protect the interest of the public and freedom of the media. There is a need for a sufficient certainty in legal principles.
The Law Reform Commission was of the view that liability should not usually attach for prejudicial publications before proceedings have become active. However, it was of the view that there should be no blanket of immunity for pre-proceedings publications irrespective of how serious and how much in the public interest, the publisher might believe the matter to be.
The Law Reform Commission preferred a narrow rule imposing liability for contempt in relation to publications before proceedings were active where the publisher was aware of facts which to its knowledge render the publication certain or virtually certain to cause serious prejudice to a person whose imminent involvement in criminal or civil proceedings is certain or close to certain.