The Supreme Court has refused, by a three to two majority, to give the Mahon planning tribunal an order banning publication by the media now and into the future of documents circulated in private by the tribunal in advance of its public hearings.
The order sought had no legal justification and would breach the right to freedom of expression, including the free communication of information, guaranteed under the Constitution and European Convention on Human Rights, Mr Justice Nial Fennelly said.
"The right of a free press to communicate information with- out let [obstruction] or restraint is intrinsic to a free and democratic society," the judge said.
The order sought was in "very wide terms", "related to unspecified information" and was disproportionate to the tribunal's objective of protecting the right to privacy and good name of persons who assisted it by making statements and providing documents.
The tribunal had no legal power to designate as "confidential" material released by it and no power to stop by court orders those to whom it communicated its briefs from communicating their contents, he said. The courts could not confer such power on it.
In existing Irish law, it had not been established that governmental, public or other statutory bodies had the right to apply for injunctions preventing the disclosure of confidential information.
However, the judge left open the possibility that individuals who were aware of impending media publication of information communicated in confidence by them to the tribunal, which they could show was private and personal such as bank accounts, could succeed in seeking such injunctions.
Mr Justice Fennelly was delivering the majority Supreme Court judgment that dismissed an appeal by the tribunal against the High Court's refusal to grant a perpetual injunction restraining the Sunday Business Post and others from publishing material circulated in private by the tribunal prior to its public hearings.
The Chief Justice, Mr Justice John Murray, and Mrs Justice Susan Denham agreed with Mr Justice Fennelly. The dissenting judgment was given by Mr Justice Hugh Geoghegan with whom Mr Justice Adrian Hardiman agreed.
The case arose after the newspaper published three articles in October 2004, written by Barry O'Kelly and headlined "Jim Kennedy's Pipe Dream", "Fifty councillors named in new planning list" and "Lenihan, Flynn in new payments revelations".
The tribunal claimed those articles were based on extensive leaks of "confidential" tribunal documents, and such publication breached the rights of persons to fair procedures before the tribunal, to their privacy and to protection of their good name. In the High Court in October 2005, Mr Justice Peter Kelly refused to grant an injunction preventing the Sunday Business Post or other media publishing documents which the tribunal had circulated in advance of public hearings. However, publication of such material was restrained pending the outcome of the appeal.
Yesterday, Mr Justice Fennelly said the entire case depended on whether certain documents circulated by the tribunal were confidential or not. The tribunal had adopted a policy of confidentiality in 1998 but had experienced difficulties of leaking of such information which disclosures, the tribunal believed, damaged its work.
The High Court had correctly taken the view, and the tribunal accepted, that it was seeking to restrict freedom of expression of the media in that it wanted a general "prior restraint" order, restraining future publication by the media prior to public hearings. Any party seeking such an order must justify it and the courts must give the matter the most careful scrutiny.
The judge stressed the court did not have to decide whether publication of the material which the tribunal regarded as confidential was in the public interest, as the media claimed, or just a means of boosting circulation, as the tribunal claimed. Nor did the media have to justify publication on public interest grounds.
The right to freedom of expression extends the same protection to worthless, prurient and meretricious publication as it does to worthy, serious and socially valuable works, the judge said. "I have no doubt that much of the material which appears in the news media serves no public interest whatever." Barry O'Kelly was clearly aware of a tribunal direction that the names of three TDs mentioned in a statement given to the tribunal by Jude Campion should not be disclosed, and Mr O'Kelly's decision to name the TDs in an article was "disgraceful and served no identifiable public interest". However, that did not mean it was unlawful.
The right to freedom of expression was not absolute and could be restricted by laws passed to advance other legitimate social purposes. Any proposed restriction must first meet the requirement of "legality", and must be based on a law of the State.
