The Charleton Tribunal, which is going to investigate whether the media was used during an alleged smear campaign directed by senior garda management, is to seek submissions on the issue of whether privilege attaches to communications with journalists.
In an opening statement on Monday the tribunal chairman, Mr Justice Peter Charleton, asked if there is a privilege against giving evidence, including relevant records, where someone communicates in confidence, or off the record, to a journalist?
The tribunal has been asked to report on whether the media was briefed negatively that Sergeant Maurice McCabe was motivated by malice and revenge in order to encourage negative comment against him. It has also been asked to report on an RTÉ broadcast of May 9th last and whether it was influenced by Garda Commissioner Noirín O’Sullivan.
In his address on Monday, Mr Justice Charleton asked whether, if journalistic privilege exists, is it because of the public interest in protecting investigations by the media?
“Does journalistic privilege attach to communications to a journalist where that communication by the source may not be in the public interest, but, instead, where the source is perhaps solely motivated by detraction or calumny?”
Submissions will be heard on the matter and a ruling may have to be made, he said. For that ruling, facts would have to be established.
“A primary source of such facts would appear to be the journalists to whom such allegations were allegedly made. This, according to the terms of reference, looks as if it may need to be pursued.”
The tribunal has been tasked specifically to find out if the media was used as an “instrument for the dissemination of lies”.
The Supreme Court judge said that with “informer privilege”, the privilege is that of the informer. With legal professional privilege, the privilege is that of the client, not the lawyer.
“Here, the privilege, if there is one, may attach to a communication to a journalist in the interests of providing truthful information to the public, but is it possible that such a privilege does not apply to using the media as an instrument of naked deceit?”
He said that the existing law suggests that the privilege is that of the confidential informant and not that of the journalist.
The tribunal, he said, had no settled view on the matter and careful consideration will be given to it once submissions have been heard.
