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26 June 2007
A recent Irish High Court decision(1) includes a rigorous underlining of the importance of the right to freedom of expression in Irish society. The case involved the leaking of documents over which a judicial tribunal had asserted confidentiality. The tribunal, set up to inquire into potentially illicit payments to politicians, had circulated documents to the parties before it (including witnesses) prior to commencing public hearings. Newspaper articles had subsequently appeared in the defendant newspaper that were clearly rooted in the documents.
The present case arose from the tribunal's seeking injunctive relief to prohibit any further articles pertaining to documents circulated by the tribunal from appearing in print. It failed in the first instance in the High Court, which refused to grant an injunction. The newspaper had argued that an order as sought would "fetter its constitutional rights pursuant to Article 40.6.1 of the Constitution" (the article that guarantees freedom of speech). The judge agreed, citing both Article 40 and Article 10 of the European Convention on Human Rights. He referred in his judgment to "the cardinal importance of press freedom", arguing that any restrictions on that freedom had to be proportionate.
The tribunal had also submitted that the material itself was inherently confidential. This aspect of the case is particularly interesting as it parallels developments in the United Kingdom where, it has been argued with some justification, a tort of privacy is being developed by the shoe horning of privacy principles into the existing action for breach of confidence. The court applied a very limited definition to "confidential", permitting only "material which has the necessary quality of confidence about it".
The tribunal appealed the decision and the Supreme Court upheld trenchantly the High Court's attitude, noting that what was effectively being sought by the tribunal was an order of "prior restraint". The Supreme Court also confirmed that the Constitution guarantees the inseparable rights to express convictions and opinions and to communicate facts or information. The circumstances in which either right could be constrained were limited and the principle of proportionality in Ireland had been bolstered by the introduction of the convention into Irish law.
The court also rejected the submissions by the tribunal regarding the law of confidence and noted that in order to be considered confidential, information must satisfy each part of a three-step test. It must:
The newspaper argued that in light of this test, the tribunal was not the proper party to claim confidentiality over the documents. If the tribunal was to fit within the scope of the traditional type of case concerning a breach of confidence between private individuals, it had to prove detriment to the public interest. The court held that it had not.
The decision is notable for the robust defence of freedom of expression in Irish law contained in it; a defence that leaves little room for ambiguity. It is clear that the Irish courts will lay heavy emphasis on the importance of freedom of expression in a democratic society and is also interesting for demonstrating the manner in which the convention interacts with the Irish Constitution. "Constitution and Human Rights Act in Conflict?" touched upon the likely implications of conflict between the Constitution and the convention; in terms of freedom of expression at least, it seems that conflict is unlikely to arise.
For further information on this topic please contact Michael Tyrrell or Patrick Walshe at Matheson Ormsby Prentice by telephone (+353 1 232 2000) or by fax (+353 1 232 3333) or by email (firstname.lastname@example.org or email@example.com).
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