European Court of Human Rights

Information Note on the Court’s case-law No. 178

November 2014

Keena and Kennedy v. Ireland (dec.) - 29804/10

Decision 30.9.2014 [Section V]

Article 10

Article 10-1

Freedom to impart information

Freedom to receive information

Award of costs against journalists for destroying evidence in order to protect their sources: inadmissible

Facts - The first applicant was a correspondent on and the second applicant the editor of the Irish Times. In 2006 the newspaper published an article containing references to a confidential letter that had been sent to a third party by a tribunal of inquiry set up to investigate alleged corruption. The tribunal ordered the applicants to produce and hand over the documents on which the article was based, but the second applicant replied that they had been destroyed to protect the newspaper’s sources. The tribunal then brought proceedings in the Irish courts for orders compelling the applicants to comply with the tribunal’s order and to appear before the tribunal to answer its questions concerning the source and whereabouts of the documents. Although the Supreme Court ultimately found in the applicants’ favour, it nevertheless ordered them to pay the costs of the proceedings on the grounds that by deliberately destroying the evidence they had deprived the courts of any power to give effect to the tribunal’s order.

In their application to the European Court, the applicants complained that the costs award had interfered with their right to protect their journalistic sources.

Law - Article 10: The Supreme Court’s ruling on costs was not to be characterised as an interference with the applicants’ right to protect the secrecy of their journalistic sources. The issue whether the tribunal had an interest in ascertaining the source of the leak would have involved the balancing of competing public interests and was for the domestic courts to resolve in the first place, guided by the relevant Convention case-law. The domestic courts would have been in a position to do so had the applicants not destroyed the documents. Where competing public interests were in issue, the correct course would have been to allow for a proper judicial determination of the matter in its entirety. Permitting the High Court, and subsequently the Supreme Court, to adjudicate the matter in full would have been fully consonant not only with Article 10, but also with the rule of law, a fundamental principle of the Convention as a whole.

The course of action adopted by the applicants in the instant case was not a legitimate exercise of their right under Article 10 to refuse to disclose their source. The protection of the courts had been available to them in order to vindicate their rights. The Convention did not confer on individuals the right to take upon themselves a role properly reserved to the courts. As the domestic courts had underscored, this was, effectively, what the applicants had done through the deliberate destruction of the very documents that were at the core of the Tribunal’s inquiry.

The Court did not accept that the order for costs was liable to have a chilling effect on freedom of expression. As a general principle, costs were a matter for the discretion of the domestic courts. Furthermore, the order for costs in the circumstances of the applicants’ case could have no impact on public interest journalists who vehemently protected their sources yet recognised and respected the rule of law. The Court could 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, could usurp the judicial function. The true purport of the Supreme Court’s ruling was to signal that no party was above the law or beyond the lawful jurisdiction of the courts.

Conclusion: inadmissible (manifestly ill-founded).

 

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This summary by the Registry does not bind the Court.

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