Supreme Court dismisses appeal as Tribunal lacks power to order media confidentiality on vague terms.

THE SUPREME COURT

Record No. 367/05

Murray C.J.

Denham J.

Hardiman J.

Geoghegan J.

Fennelly J.

BETWEEN/

HIS HONOUR JUDGE ALAN P. MAHON,

HER HONOUR JUDGE MARY FAHERTY

AND HIS HONOUR JUDGE GERALD B. KEYS

(MEMBERS OF THE TRIBUNAL OF INQUIRY

INTO CERTAIN PLANNING MATTERS

AND PAYMENTS)

PLAINTIFFS/APPELLANTS

AND

POST PUBLICATIONS LIMITED

TRADING AS THE SUNDAY BUSINESS POST

DEFENDANT/RESPONDENT

JUDGMENT of MR. JUSTICE FENNELLY delivered the 29th day of March, 2007

1. In this appeal, the Planning Tribunal asks the Court to hold that it has power to require that documents which it circulates prior to

public hearing of its modules be treated as confidential and to make general orders restraining the defendant and, in effect, all media

of communication, from publishing them until they are disclosed at a public hearing.

The Proceedings

2. The plaintiffs are members of the Tribunal of Inquiry into Certain Planning Matters and Payments. The Tribunal was established

pursuant to an instrument of the Minister for the Environment and Local Government dated 4th November 1997 by virtue of the

Tribunals of Inquiry (Evidence) Acts, 1921 and 1979 and a resolution passed by Dáil Eireann on 7th October 1997 and by Seanad

Eireann on 8th October 1997. The terms of reference of the Tribunal have been amended by a number of subsequent ministerial

instruments. I will refer to the plaintiffs as the Tribunal.

3. The defendant is a limited company. It is a subsidiary of Thomas Crosbie (Holdings) Ltd, which publishes “The Examiner.” It also

publishes the “Sunday Business Post.”

4. The present proceedings commenced on 17th December 2004 when Finnegan P., on an ex parte application, granted to the

Tribunal injunctions in terms set out in a plenary summons issued on 20th December 2004. By notice of motion served for 17th

January 2005 the Tribunal applied for interlocutory injunctions in the same terms. Following adjournments to facilitate an exchange of

affidavits, the matter came on before Kelly J. in the High Court. By agreement the hearing of the motion was treated as the trial of

the action. There were no pleadings other than the plenary summons. In the absence of a statement of claim or of an order granting

leave in judicial review proceedings, the issues must be gleaned from the affidavits filed in respect of the application for an

interlocutory injunction. The injunctions sought in the proceedings, and granted by Finnegan P., were:

"An order restraining the Defendant, its servants or agents (and all other persons having knowledge of the granting of the

Order herein) from publishing or using information or reproducing any document (or any part thereof) or the contents

thereof in relation to which the Defendant its servants or agents are aware that the Tribunal has directed that such

information or documentation should remain confidential until disclosed at public hearing of the Tribunal or as otherwise

directed by the Tribunal;

Further or in the alternative an injunction restraining the Defendant its servants or agents from publishing or using

information or reproducing any documents (or any part thereof) or the contents thereof in relation to which the

Defendant its servants or agents are aware that the Tribunal has circulated on a confidential basis to any party or

witness to the Tribunal

(a) before such information and/or the contents of such document has been disclosed or read at a public hearing of

the Tribunal;

(b) until the Tribunal has given express permission for the publication, use or exploitation of such information and/or

document."

5. The Tribunal’s motion was grounded on an affidavit of Ms Marcelle Griffin (hereinafter “Ms Griffin”). Mr Anthony Dinan swore an

affidavit on behalf of the defendant and Ms Griffin swore a replying affidavit. A comprehensive summary of the evidence and, to a

considerable extent, argument is to be found in the judgment of Kelly J. The entire case depends on the confidentiality of certain

documents circulated by the Tribunal.

6. The Tribunal expounded its policy in respect of confidentiality in a protocol of 14th January 1998. The Tribunal appreciated the

concern with regard to personal and commercial confidentiality of persons wishing to assist it in its work. To protect these “legitimate

concerns,” it outlined a number of measures it proposed to adopt. Principally, these were:

7. The Tribunal would return all original documents to their owners on conclusion of its work. In addition:

· All copies of documents containing confidential, commercially sensitive or personal information would be destroyed on

conclusion of its work;

· Confidential information not relevant to the inquiry would not be disclosed to any outside party;

· Documents containing both confidential, commercially sensitive or personal information and other information, which was

relevant, would have irrelevant information blanked out (“redacted”).

8. The Tribunal protocols on confidentiality are set out in full in the judgment of Geoghegan J. Nonetheless, the Tribunal has, since its

establishment, experienced considerable difficulties in respect of unauthorized disclosure of confidential information. The Tribunal

considers that such disclosure causes delay and damage to it in its work. Ms Griffin relates, in her affidavit, a number of instances of

serious complaints from individuals, who were in communication with it for the purpose of its work and who claimed that their rights

had been infringed by such unauthorized disclosure.

9. Ms Griffin describes the Tribunal’s modus operandi, which is by now very well known from various judgments of this Court. It divides

its work into a first, investigative stage and a second hearing stage. The Tribunal conducts the first stage entirely in private. The

second consists of public hearings. Ms Griffin explains that, in the first stage, the Tribunal seeks statements from persons who may be

called as witnesses at public hearings. The confidentiality of this stage is essential to the work of the Tribunal. All those participating

are made aware of this stipulation. Persons assisting the Tribunal expect and may demand confidentiality as a condition of their

cooperation and will be dissuaded by the publication of “leaked” information in the news media. In addition, and most materially for the

purpose of the present appeal, the Tribunal circulates a set of documents or a “brief” some six weeks in advance of the

commencement of public hearings in relation to one of its modules. These briefs are circulated to a carefully selected and limited

number of persons. The purpose is to enable those persons to prepare for the public hearing. In every case, such persons are

expressly notified in writing that the circulation is on a strictly confidential basis. The terms of the confidentiality requirement, as set

out in the letter accompanying the documents circulated in October 2004, which gave rise to the present proceedings, was:

“The enclosed documents remain the property of the Tribunal and the information contained therein is confidential to the

Tribunal and may not be disclosed to any person other than your legal advisor, who is likewise restrained from disclosing

the contents thereof. You must retain the original documents in your possession. If it is your intention to copy any of the

documents enclosed, you must seek the consent of the Tribunal prior to doing so.”

10. Ms Griffin describes specific instances of individual complaints arising from leaks. On 10th December 1998, the then Sole Member

wrote to the editors of a number of newspapers, including the Sunday Business Post, expressing concern at “the continuing

publication in the print media of confidential material provided by the Tribunal and circularized by the Tribunal on a strictly confidential

basis.” It required an undertaking on the part of each addressee that it would not publish any confidential material which the Tribunal

had circulated in confidence. No undertakings were given.

11. On 11th December 1998, the Tribunal sat in public to consider whether to make an order pursuant to the provisions of section 4

of the Tribunals of Inquiry (Evidence) Act, 1979, whose terms I will describe later, against a number of newspapers and broadcasters.

The then Sole Member delivered a lengthy ruling on 18th December 1998, reiterating the position already taken that all documentation

and information relating to its inquiry work was confidential, indication that it was considering the making of an order against one

newspaper company and concluding:

“The Tribunal intends instituting proceedings in the High Court in an effort to prevent any further unauthorized disclosure

of confidential Tribunal information.”

12. In late 1998, following complaints from the Tribunal to the Commissioner of An Garda Síochána, a garda investigation into leaks

took place. It lasted four months. Ninety eight people were interviewed including four journalists. The journalists refused to cooperate

or to reveal their sources of information. Further unauthorized publication in 2001 led to a public statement by the Sole Member.

13. On 24th January 2001, the Sole Member made a public statement at a sitting of the Tribunal expressing “concern about the

content of some recently published newspaper articles.” The statement did not specify the articles or their publishers but explained

that the Tribunal found it appropriate from time to time to seek discovery of bank records of individuals and companies but that this

did not mean that such individuals had been guilty of any impropriety. The Sole Member also said that the Tribunal had recently

learned that a memorandum from the legal department of a bank had come into the possession of a national newspaper, but that the

newspaper in question had undertaken not to publish the information. On 26th January 2001, the Tribunal wrote to the solicitor for

the defendant in reference to publication by Mr Frank Connolly in the Sunday Business Post entitled of an article entitled: “Flood

Probes TDs’ Bank Accounts.” The letter stated that the article appeared to have been based on documents compiled from a series of

letters written to a financial institution by the Tribunal. The letter cited in full the Tribunal’s statement of confidentiality. It

complained that the newspaper was undoubtedly aware of that policy and that publication of the article constituted a very serious

breach of the confidentiality of the Tribunal.

14. It does not appear from Ms Griffin’s affidavit that any further similar publications occurred between 2001 and October 2004, when

the story leading to the present appeal commences. As will become apparent, the injunction sought by the Tribunal does not relate to

this material.

15. On 15th October 2004, the Tribunal circulated the brief for its pending “Coolamber” module. It included the confidentiality

stipulation quoted above.

16. On 17th October 2004, the Sunday Business Post published two articles, written by Barry O’Kelly, entitled: “Jim Kennedy’s Pipe

Dream;” and “Fifty Councillors named in new planning tribunal list.”

17. On 21st October 2004, the Tribunal wrote to Mr O’Kelly at the Sunday Business Post as follows:

“I refer to your article in the Sunday Business Post dated 17th October 2004 entitled “Jim Kennedy’s Pipe Dream.”

I am directed to request that you furnish to the Tribunal:-

1. The identity source or sources of the information contained in your article;

2. Any documentation or other material furnished to you in relation to the article.

Please reply within four working days hereof.”

18. Mr O'Kelly was the author of a further article which appeared in the Sunday Business Post for 24th October 2004, entitled:

“Lenihan, Flynn in new payments revelations.” That article included extracts from a confidential statement furnished to the Tribunal

by Mr Jude Campion and was accompanied by a photograph of an extract from Mr Campion’s statement. The Tribunal’s date stamp

and the word “confidential” also appeared. Ms Griffin has sworn that the statement of Mr Campion, like other Tribunal documents, had

been circulated to a limited number of persons, under the usual terms as to confidentiality, on 15th January and 21st October 2004.

19. Ms Griffin draws attention to a particularly disturbing feature of this publication. Mr Campion gave evidence in public at the

Tribunal on 14th, 15th and 19th October 2004. During those sittings, the Tribunal directed that the names of three specific persons

mentioned in Mr Campion’s statement should not be disclosed but that they be referred to as A, B and C. Mr O'Kelly was clearly aware

of this direction. His article said: “The names of the TDs ……were left unsaid at the request of the Tribunal. Quite plainly, Mr O’Kelly

was fully aware that the Tribunal regarded as confidential both the statement of Mr Campion and the names of the three TD’s

mentioned. The Tribunal had written to the newspaper on 21st October. Mr O’Kelly was blatant in his defiance of the claim of

confidentiality.

20. Mr O'Kelly phoned the Tribunal on 26th October 2004 to state that he could not comply with the written request that he name his

sources. He was relying on journalist’s confidentiality. The Tribunal received two serious written complaints on behalf of persons who

had been circulated with documents over which they claimed to place a requirement of confidentiality. These are cited more fully in

the judgment of Geoghegan J. The Tribunal wrote to all recipients of the “Coolamber Brief” seeking to ascertain the source of the

leak. All those persons denied that they had been responsible for any disclosure.

21. Correspondence was then exchanged between the Tribunal and solicitors for the defendant. I do not think it is necessary to

relate it in detail. The Tribunal unsuccessfully sought disclosure of Mr O'Kelly’s sources. They also asked for an undertaking that the

documents in his possession be kept and not destroyed. The defendant's solicitors took the position that only Mr O'Kelly knew the

source of the information and that he relied on journalist’s privilege and that they had conveyed the Tribunal’s request not to destroy

the documents to their client. The solicitors informed the Tribunal that the documents had been destroyed by Mr O'Kelly. He asserted

that their return to the Tribunal might reveal the source of his information.

22. The Tribunal summoned Mr O'Kelly, Mr Dinan and Mr Richard Martin, solicitor, to appear at a hearing on 1st December 2004. Mr

O'Kelly, having confirmed that he had received appropriate legal advice, declined to produce the copy of Mr Campion’s statement,

which was in his possession. He said that he had destroyed it. At a subsequent hearing, Mr O'Kelly refused to reveal his sources. Mr

Dinan declined to give an undertaking on behalf of the Sunday Business Post, that it would not publish “information or documentation

in relation to which it [Sunday Business Post ] is aware that the Tribunal has directed that such information or documentation should

remain confidential……”

23. Ms Griffin has sworn, in her grounding affidavit on behalf of the Tribunal that, “if an injunction is not granted against [the

defendant] then that newspaper will continue to publish confidential information ……” She continued: “The Tribunal is gravely

concerned that, based on its experience to date, some or all of the documents will be deliberately leaked by persons to whom they

have been circulated in a deliberate attempt to undermine the Tribunal.” (emphasis added). Thus, the Tribunal makes it clear that it

attributes the leaks to the persons to whom it has circulated information. It does not suggest that they come from Tribunal sources.

24. Mr Dinan, in his affidavit on behalf of the defendant contests the jurisdiction of the Tribunal to demand that Mr O'Kelly reveal his

sources or to demand that newspapers give undertakings as to future conduct. He disputes that the relevant information is or was

confidential or that the Tribunal was entitled to maintain any claim of confidentiality in respect of it. Mr Dinan explains the attitude

generally taken by journalists to the revelation of sources. It is that this is a principle which must be maintained in the public interest:

“It frequently falls to journalists to reveal matters of which the public ought to be aware, but which journalists have obtained from

sources who have provided the same only on the basis of a guarantee that their identity will not be revealed. If that guarantee was

broken in any given cases, then the likelihood of other material being provided in future……would become very small indeed.”

25. Mr Dinan went on to swear that the publication of the articles of which the Tribunal complained was in the public interest. He

explained that the attitude of the defendant newspaper was that “the decision of the Tribunal to declare a document confidential

could not of itself be regarded as determinative of any decision as to whether not to publish. This decision must be made only by the

editor of the newspaper in the proper context where all matters are considered.”

26. More generally, Mr Dinan swore:

“I say that the difficulty with the order which the Tribunal is now seeking to have made is that it is attempting to bind the

newspaper in future in respect of unspecified documents in circumstances where the newspaper in future might or might

not know that any particular ruling on confidentiality has been made by the Tribunal.”

24. Ms Griffin, in her replying affidavit, responds to Mr Dinan’s contention that publication was in the public interest by asserting that

the defendant is not motivated by any public interest but rather by the desire to increase circulation.

The High Court Judgment

25. Kelly J, in a comprehensive judgment delivered on 4th October 2005 [2005] IEHC 307, rejected the Tribunal’s application.

26. He was, he said, concerned only with future publications. He noted that there was little factual dispute between the parties. The

Tribunal was asserting confidentiality in respect of everything contained in a brief, but made no distinction based on whether

information or documents had or had not been obtained on the basis of an assurance of confidentiality. He summarised the Tribunal’s

case as follows:

“The Tribunal contends that it has the entitlement to create an obligation of confidentiality in respect of material

contained in the brief circulated by it, regardless of the source or nature of the documents or information which it

contains. It is that assertion of confidentiality which it seeks to enforce in these proceedings. There can be little doubt of

this when one considers the affidavit evidence and in particular paragraph 7 of the replying affidavit of Ms. Gribbin and

the form of the orders which I am asked to make. “

27. The defendant, on the other hand contested the power of the Tribunal to direct that documents or information should be

confidential, in the manner claimed. Furthermore, it said that the documents do not have the necessary quality of confidentiality. The

defendant argued that the reliefs sought were not specific enough, because the documentation or information was not readily

identifiable. It submitted, in particular, that an order as sought would fetter its constitutional rights pursuant to Article 40.6.1 of the

Constitution.

28. Kelly J commenced his analysis by pointing out that the injunctions were an attempt to restrain an organ of the press from

publishing material. Following a review of a number of decisions of the High Court and the Supreme Court with regard to the

interpretation of Article 40.6 of the Constitution and of the European Court of Human Rights regarding Article 10 of the Convention, he

observed:

“This court recognises the cardinal importance of press freedom. Any restriction on it must be proportionate and no more

than is necessary to promote the legitimate object of the restriction. The position can be summarised succinctly by a

quotation from the judgment of O'Higgins C.J. in Cullen v. Toibín [1984] I.L.R.M. 577 where he said:-

'The freedom of the press and of communication which is guaranteed by the Constitution… cannot be lightly

curtailed.'

It is against this background of a constitutionally guaranteed entitlement to press freedom coupled with a similar right

under Article 10 of the Convention that this application for injunctive relief must be viewed.”

29. Kelly J. then proceeded to consider the entitlement, claimed by the Tribunal, to assert a claim of confidentiality over the material

circulated as part of its brief, and to restrain the publication by the Sunday Business Post. He demonstrated by reference to the

judgments of this Court in O’Callaghan v Judge Alan Mahon and others, (Supreme Court Unreported 9th March 2005 [2005] IESC 9)

(conveniently referred to as JR324 in the submissions in this case), that the Tribunal had failed to maintain a claim of confidentiality in

the circumstances of that case.

“In the present case I am of opinion that the claim to confidentiality goes even further than that which was

unsuccessfully asserted by the Tribunal in O'Callaghan's case. Having received statements on a confidential basis the

Tribunal then circulates those statements and other material to the relevant parties. All of those documents whether

obtained confidentially or not (and some of which are public documents) are sought to be rendered confidential by a

policy decision of the Tribunal. Regardless of nature or source every document in a brief is said to be confidential and this

court is asked to intervene so as to enjoin publication of all and any of that material by the defendant. I can find no

authority statutory or otherwise, express or implied which enables the Tribunal to create such far reaching confidentiality,

nor in my view should this court enforce it.”

30. Kelly J also reviewed the history of the law in respect of the equitable doctrine of confidence, with citations from English and Irish

cases. He observed that the reliefs sought by the Tribunal covered all material in a brief, whether or not it was truly of confidential

character. The only material capable of protection under the doctrine was that which had the necessary quality of confidence about

it. He concluded:

“The reliefs which I am asked to grant seek to cover all of the material in a brief which the Tribunal has directed should

remain confidential. Some of that material was obtained confidentially, some not. Some are public documents, some not.

The mere fact that the Tribunal has directed that information or documents should remain confidential does not, in my

view, make such documents confidential.

The only material which could be capable of protection is that which has the necessary quality of confidence about it.

Material which is public property and public knowledge cannot have that quality. No order of the Tribunal can make it so.

Some of the material in the brief might well be capable of protection but the injunctive reliefs sought make no such

distinction or give any clue in that regard.”

31. Finally, he considered the circumstances in which a court might restrict the exercise of the right of freedom of expression. He

quoted the analysis by Lord Hope of Craighead in his speech R. v Shayler [2003] 1 A.C. 247 at 280 of Article 10(2) of the European

Convention on Human Rights and Fundamental Freedoms. That was to the effect that any such restriction must satisfy certain basic

requirements. In the view of Kelly J, the restriction sought by the Tribunal did not satisfy these requirements. In particular, he did not

consider that its imposition would be proportionate. Finally, he declined the invitation of the Tribunal to fashion a more narrow remedy

than that sought.

32. I find myself fully in agreement with the approach adopted by Kelly J. In particular, he was right to take as his starting point the

proposition that the matter as involving a request to restrict freedom of expression. I will turn then to discuss these issues.

The Appeal

33. The Tribunal’s notice of appeal contains fourteen grounds. Seven grounds take issue with that part of the High Court judgment

which held that the order sought was overbroad and that there was insufficient information to enable the court to frame an

appropriate order so as to protect only “truly confidential material.”

34. Regarding the substance of the Tribunal’s case, one ground concerned the failure of the High Court:

“to find that an obligation of confidentiality prevented the Defendants from publishing confidential documents and

information having as its source the disclosure of such material by the Tribunal in the interest of permitting affected

individuals to vindicate their constitutional rights.”

35. A number of other grounds complain of: the failure of the High Court to take sufficient account of the right of privacy under the

Constitution and under Article 8 of the Convention; to take sufficient account of the citizen’s right to protection of his or her good

name; failing to find that section 4 of the Official Secrets Act, 1963 imported a confidence into material disclosed by the Tribunal.

There is specific complaint that the learned High Court judge failed “to have any or any adequate regard to the qualifications and the

right to freedom of expression laid out in Article 10.2 of the European Convention on Human Rights.” Finally, it is said that the learned

judge failed to hold that, in the event of any conflict between the Convention and the Constitution, the Constitution must prevail.

36. I do not propose to consider the issue of the Official Secrets Act. As was pointed our when the matter was raised at the hearing,

that Act provides only for criminal sanctions. I do not see any basis for the allegation that it imports a right for the Tribunal to impose

a requirement of confidentiality.

37. The Tribunal’s case is, therefore, expressly based on the claimed confidentiality of documents circulated by the Tribunal “in the

interest of permitting affected individuals to vindicate their constitutional rights.” Mr Paul O’Higgins, Senior Counsel, for the Tribunal,

argued that what was involved was a species of public-interest confidentiality. The public interest consisted in vindicating the good

name of individuals as part of the Tribunal process. The Tribunal should be in a position to assure those who engage with it in its work

that the information they provide will be used only in the interests of its inquiries and circulated in such a way that their confidence is

respected.

38. Mr O’Higgins accepted the prima facie status of freedom of speech and argued that the issue was where the balance was to be

struck.

39. The Tribunal does not dispute that the order it seeks would impinge upon the freedom of expression of the defendants and of

others affected by the order. Nor does it dispute that it must rely on one of the permitted qualifications of that right.

Freedom of Expression

40. The Tribunal seeks, in the form of an injunction, a general order restraining future publication by the media. That form of order is

called prior restraint. That is axiomatic and must be recognised before proceeding further in the discussion.

41. Freedom of expression is, of course, guaranteed both by the Constitution and by the Convention, but, even without those

guarantees and simply on the basis of the common law, it is elementary that any party asking a court to impose prior restraint of

publication must justify it.

42. It is no function of the Court to adjudicate on the dispute agitated in the affidavits as to whether future publication by the media

of material regarded as confidential by the Tribunal would be in the public interest, as the defendant claims, or would be aimed at

boosting circulation, as Ms Griffin has stated on behalf of the Tribunal. The courts do not pass judgment on whether any particular

exercise of the right of freedom of expression is in the public interest. The media are not required to justify publication by reference

to any public interest other than that of freedom of expression itself. They are free to publish material which is not in the public

interest. I have no doubt that much of the material which appears in the news media serves no public interest whatever. I have

equally no doubt that much of it is motivated, and perfectly permissibly so, by the pursuit of profit. Publication may indeed be

prompted by less noble motives. So far as the facts of the present case are concerned, the decision of Mr O’Kelly to publish the

names of three TD’s in direct defiance of the wishes of the Tribunal was disgraceful and served no identifiable public interest. On the

other hand, that does not mean that it was unlawful.

43. The right of freedom of expression extends the same protection to worthless, prurient and meretricious publication as it does to

worthy, serious and socially valuable works. The undoubted fact that news media frequently and implausibly invoke the public interest

to cloak worthless and even offensive material does not affect the principle. Like Kelly J, I cite the following passage from the

judgment of Hoffmann L.J., as he then was, in R. v Central Independent Television PLC [1994] Fam. 192; [1994] 3 WLR 20:

“Newspapers are sometimes irresponsible and their motives in a market economy cannot be expected to be unalloyed by

considerations of commercial advantage. Publication may cause needless pain, distress and damage to individuals or harm

to other aspects of the public interest. But a freedom which is restricted to what judges think to be responsible or in the

public interest is no freedom. Freedom means the right to publish things which government and judges, however well

motivated, think should not be published. It means the right to say things which 'right thinking people' regard as

dangerous or irresponsible. This freedom is subject only to clearly defined exceptions laid down by common law or

statute.”

44. For the purposes of the present appeal, it is the last sentence of that passage which is important. The Tribunal needs to point to

an exception clearly defined by law.

45. To be fair to the Tribunal, it has never contested or sought to diminish the importance of the freedom of the press to report and

comment on its proceedings. For example, Ms Griffin has exhibited in her grounding affidavit the decision of the then Sole Member of

the Tribunal dated 18th December 1998 which contains the following admirable statement:

“The Tribunal readily accepts both the importance and the role of the media in educating public opinion. This role is

specifically acknowledged in the language of Article 40.6.1.i of the Constitution. The media enjoys a continuing right to

freedom of expression that to be any way meaningful must include a right to report, comment and criticize. This Tribunal

in common with any other public entity in this State can legitimately be the subject of adverse media comment. The

Tribunal does not make any case that it is immune from the ordinary course of media reporting, comment and criticism.”

46. The Tribunal does not, on this appeal, contest these propositions. It expressly accepts that the right of freedom of expression is

constitutionally guaranteed and, furthermore, that the law in this area must now be considered in the light of the European

Convention of Human Rights Act, 2003. It submits, however, that the qualifications on the right to freedom of expression are as

important as the right itself.

47. It is, therefore, necessary to consider the extent and nature of the right at issue before addressing the question of the

restrictions which may be justified.

48. Article 40.6.1(i) of the Constitution guarantees the: “right of citizens to expressly freely their convictions and opinions……” The

present case concerns the communication of information rather than opinions. The constitutional origin of the right to communicate

information has been considered in two cases:

49. In Attorney General v. Paperlink Limited [1984] I.L.R.M. 373 at p. 381, Costello J situated it in Article 40.3.1°. He reasoned as

follows:

"[T]he act of communication is the exercise of such a basic human faculty that a right to communicate must inhere in the

citizen by virtue of his human personality and must be guaranteed by the Constitution. But in what Article? The exercise

of the right to communicate can take many forms and the right to express freely convictions and opinions is expressly

provided for in Article 40.6.1°(i). But the activity which the defendants say is inhibited in this case is that of

communication by letter and as this act may involve the communication of information and not merely the expression of

convictions and opinions I do not think that the constitutional provision dealing with the right to express convictions and

opinions is the source of the citizen's right to communicate. I conclude that the very general and basic human right to

communicate which I am considering must be one of those personal unspecified rights of the citizen protected by Article

40.3.1°."

50. In Murphy v. I.R.T.C. [1999] 1 I.R. 12, Barrington J, delivering the judgment of the Court, appears to have modified this, saying,

at page 24 of the judgment:

“It appears to the Court that the right to communicate must be one of the most basic rights of man. Next to the right to

nurture it is hard to imagine any right more important to man's survival. But in this context one is speaking of a right to

convey one's needs and emotions by words or gestures as well as by rational discourse.

Article 40.6.1 deals with a different though related matter. It is concerned with the public activities of the citizen in a

democratic society. That is why, the Court suggests, the framers of the Constitution grouped the right to freedom of

expression, the right to free assembly and the right to form associations and unions in the one sub-section. All three

rights relate to the practical running of a democratic society. As Barrington J. stated in Irish Times Ltd. v. Ireland [1998]

1 I.R. 359, the rights of the citizens "to express freely their convictions and opinions" guaranteed by Article 40.6.1° is a

right not only to communicate opinions but also to communicate the facts on which those opinions are based. If this

means that there is a certain overlapping between the right to communicate impliedly protected by Article 40.3 and the

right of the citizens freely to express their convictions and opinions guaranteed by Article 40.6.1°, so be it. The overlap

may result from the different philosophical systems from which the two rights derive.”

51. Clearly, the Constitution, unequivocally guarantees both the right to express convictions and opinions and the right to

communicate facts or information. These rights are inseparable. It matters little, at least for present purposes, which Article of the

Constitution expresses the guarantee. The right of a free press to communicate information without let or restraint is intrinsic to a

free and democratic society.

52. The real issue is the extent to which and the grounds upon which restrictions on that right may be justified. In the constitutional

context, Barrington J, at a later point in the judgment of the Court quoted above, added that “both the right of freedom of expression

and the right of freedom of communication are personal rights and both can, in certain circumstances, be limited in the interests of

the common good.” (page 25). The Court proceeded to judge the case before it (concerning a statutory prohibition on broadcasting

of advertisements “directed towards any religious or political end…”).

53. Our courts, therefore, recognise that the right of freedom of expression is not absolute. It may be necessary to reconcile it, in

the event of conflict, with other constitutional rights. It may even, as in the case of Murphy v. I.R.T.C., be restricted or controlled by

laws passed for the advancement of other legitimate social purposes. In such cases, the courts have found it useful to have resort to

the principle of proportionality. The judgment of Barrington J identified the issue at page 26 as follows:

“The real question is whether the limitation imposed upon the various constitutional rights is proportionate to the purpose

which the Oireachtas wished to achieve.”

54. As I hope to explain, this approach is, and has been recognised by this Court to be, closely comparable to that adopted by the

European Court of Human Rights when interpreting the Convention.

55. Article 10 of the Convention guarantees the exercise of freedom of expression in the following terms:

"1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and

impart information and ideas without interference by public authority and regardless of frontiers. This article shall not

prevent States from requiring the licensing of broadcasting, television or cinema enterprises.

2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities,

conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of

national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health

or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in

confidence, or for maintaining the authority and impartiality of the judiciary."

56. Just as the Court (Barrington J) in Murphy v I.R.T.C., posed for itself the question whether the statutory restriction on

broadcasting religious broadcasts was “proportionate to the purpose which the Oireachtas wished to achieve,” a question may be

formulated as a test for the present case in accordance with Article 10(2) of the Convention. In De Rossa v Independent Newspapers

[1999] 4 I.R. 432, a libel case, Hamilton C.J., speaking for the majority of the Court recalled, at page 449 of the judgment, the dictum

of Henchy J in Hynes-O'Sullivan v. O'Driscoll [1988] I.R. 436 at p. 450 that “the law must reflect a due balancing of the constitutional

right to freedom of expression and the constitutional protection of every citizen's good name." Hamilton C.J. added that there did not

“appear to be any conflict between Article 10 and the common law or the Constitution.” That is an issue to which I will return in more

detail.

57. I believe, therefore, that the Convention analysis provides a particularly useful mechanism for examination of the justification for

imposition of the restriction sought by the Tribunal in the present case. As Geoghegan J said in his concurring judgment in Murphy v

I.R.T.C., "[a]lthough the European Convention on Human Rights is not part of Irish municipal law, regard can be had to its provisions

when considering the nature of a fundamental right and perhaps more particularly the reasonable limitations which can be placed on

the exercise of that right." This dictum was approved by Hamilton C.J, speaking for the majority of the Court, in his judgment in De

Rossa v Independent Newspapers, cited above.(page 450).

58. The restriction sought is said to justified by the need of the Tribunal to protect the confidentiality of information communicated to

it while it is carrying out its functions in accordance with the Tribunals of Inquiry Acts and the Oireachtas resolutions which

established it.

59. Section 2 of the European Convention on Human Rights Act 2003 now requires the Court in interpreting “any statutory provision or

rule of law, ……in so far as is possible, subject to the rules of law relating to such interpretation and application, [to] do so in a

manner compatible with the State's obligations under the Convention provisions.” That provision applies to the provisions of the

Tribunals of Inquiry Acts and to the general or common law regarding the protection of confidential information.

60. A restriction on freedom of expression, if it is to be permitted pursuant to Article 10(2) of the Convention, must, as that provision

requires, firstly, be prescribed by law and, secondly, be “necessary in a democratic society…” It must, as the Court of Human Rights

has said serve “a pressing social need.” It must also, of course, serve one of the listed interests. One of these is: “preventing the

disclosure of information received in confidence.” Kelly J quoted the following passage from the speech of Lord Hope of Craighead in R.

v. Shayler [2003] 1 A. C. 247 at page 280:

"The wording of Article 10(2) …… indicates that any such restriction, if it is to be compatible with the Convention right,

must satisfy two basic requirements. First, the restriction must be, 'prescribed by law'. So it must satisfy the principle of

legality. The second is that it must be such as is 'necessary' in the interests [in that case] of national security. This

raises the question of proportionality. The jurisprudence of the European Court of Human Rights explains how these

principles are to be understood and applied in the context of the facts of this case. As any restriction of the right to

freedom of expression must be subjected to very close scrutiny, it is important to identify the requirements of that

jurisprudence before undertaking that exercise.

The principle of legality requires the court to address itself to three distinct questions. The first is whether there is a legal

basis in domestic law for the restriction. The second is whether the law or rule in question is sufficiently accessible to the

individual who is affected by the restriction, and sufficiently precise to enable him to understand its scope and foresee

the consequences of his actions so that he can regulate his conduct without breaking the law. The third is whether,

assuming that these two requirements are satisfied, it is nevertheless open to the criticism on the Convention ground that

it was applied in a way that is arbitrary because, for example, it is being resorted to in bad faith or in a way that is not

proportionate. I derive these principles, which have been mentioned many times in subsequent cases, from The Sunday

Times v. The United Kingdom, 2 E.H.R.R. 245, para.49 and also from Winterwerp v. The Netherlands [1979] 2 E.H.R.R.

387, 402 – 403, para.39 and Engel v. The Netherlands (1) 1 E.H.R.R. 647, 669, paras.58 to 59, which were concerned

with the principle of legality in the context of Article 5(1); see also A. v. The Scottish Ministers [2001] SLT 1331, 1336 –

1337."

61. It is important to note the first of these requirements, that of legality. The restriction proposed must be based on a provision of

the law of the state. Hoffmann L.J. said as much in the passage already cited. It is not necessary that the exception invoked be

prescribed by statute. The law of defamation indubitably restricts freedom of expression, but is almost entirely a creature of the

common law. But it must be based on known and accessible legal provisions. It must, as Lord Hope says be: “sufficiently precise to

enable [an affected individual] to understand its scope and foresee the consequences of his actions so that he can regulate his

conduct without breaking the law.”

62. The principle of proportionality is not expressly mentioned in the Article, but has been developed in the case-law of the Court of

Human Rights. It derives from the requirement that the restriction be “necessary in a democratic society.” The Court of Human Rights

has consistently held that to satisfy this requirement the restriction sought must serve “a pressing social need.” (see Observer and

Guardian v the United Kingdom judgment of 26 November 1991, Series A no. 216 p.30). A further crucially important aspect of that

requirement is that the restriction should not be any broader than strictly necessary to serve the interest invoked to justify it. Lord

Hope analysed proportionality in a further passage, also quoted by Kelly J, at page 281of the same speech:

"The first is whether the objective which is sought to be achieved – the pressing social need – is sufficiently important to

justify limiting the fundamental right. The second is whether the means chosen to limit that right are rational, fair and not

arbitrary. The third is whether the means used impair the right as minimally as is reasonably possible. As these

propositions indicate, it is not enough to assert that the decision that was taken was a reasonable one. A close and

penetrating examination of the factual justification for the restriction is needed if the fundamental rights enshrined in the

Convention are to remain practical and effective for everyone who wishes to exercise them."

63. Our own courts have consistently approved and applied, for instance in Murphy v I.R.T.C., the following dictum of Costello J (as

he then was) regarding the principle of proportionality in Heaney v. Ireland [1994] 3 I.R. 593 at 607:

"In considering whether a restriction on the exercise of rights is permitted by the Constitution, the courts in this country

and elsewhere have found it helpful to apply the test of proportionality, a test which contains the notions of minimal

restraint on the exercise of protected rights, and of the exigencies of the common good in a democratic society. This is a

test frequently adopted by the European Court of Human Rights…… and has recently been formulated by the Supreme

Court in Canada in the following terms. The objective of the impugned provision must be of sufficient importance to

warrant over-riding a constitutionally protected right. It must relate to concerns pressing and substantial in a free and

democratic society. The means chosen must pass a proportionality test. They must:-

1. (a) be rationally connected to the objective and not be arbitrary, unfair or based on irrational considerations,

2. (b) impair the right as little as possible, and

3. (c) be such that their effects on rights are proportional to the objective ..."

64. The Tribunal, as I have explained, founds its application for the remedies sought exclusively on the law of confidence. Necessarily,

it is driven to show that its reliance on the confidentiality of the documents it has circulated justifies the restriction of the

defendant’s right of freedom of expression.

65. Finally, under this heading, it is is important to reiterate that what is sought by the Tribunal amounts to a form of prior restraint.

The defendant, in reliance on the jurisprudence of the European Court of Human Rights, submits that any such restriction calls for the

most careful scrutiny. In Observer and Guardian v United Kingdom, (cited above), the Court held:

“…Article 10 of the Convention does not in terms prohibit the imposition of prior restraints on publication, as such………On

the other hand, the dangers inherent in prior restraints are such that they call for the most careful scrutiny by the Court.

This is especially so as far as the press is concerned, for news is a perishable commodity and to delay its publication,

even for a short period, may well deprive it of all its value and interest.”

66. That passage referred, of course, to the obligation of the European Court itself. However, it is equally plain, for reasons I have

given above, that this Court is under a corresponding obligation. Lord Hope spoke of a “close and penetrating examination of the

factual justification for the restriction.” (cited above). It must scrutinise the present application for an injunction seeking prior

restraint on publication with particular care.

The Law of Confidence

67. The Tribunal accepts that there is no provision in the Tribunals of Inquiry Acts conferring the quality of confidentiality on the

Tribunal or on any of its workings. In its written submissions to this Court, it makes reference to section 4 of the Tribunals of Inquiry

(Evidence) (Amendment) Act, 1979, which provides:

“A tribunal may make such orders as it considers necessary for the purposes of its functions, and it shall have, in relation

to their making, all such powers, rights and privileges as are vested in the High Court or a judge of that Court in respect

of the making of orders.”

68. It does not suggest, however, that its claim is based on that provision or that any order was made by the Tribunal pursuant to

that power. Indeed, the defendant claims in its written submissions that the Tribunal has made no attempt to identify the juridical

nature of its claim to confidentiality.

69. In essence, as already explained, the Tribunal bases its claim on the express written notice it gives to persons to whom it

communicates its briefs that their circulation is on a strictly confidential basis. Clearly, a matter which I wish to make perfectly clear,

none of this concerns the confidentiality of the entirely private proceedings of the Tribunal in its investigative phase, conducted prior

to the decision to go on to public hearings and to circulate briefs. That is the ordinary right to confidentiality that any person or body

possesses in respect of his, her or its own internal activities. That type of confidentiality has already been dealt with by this Court in

JR324. Nobody, whether in or out of the media, has the right to invade or trespass upon the internal workings of any individual or

organisation. Problems arise only when information has been released or, as often happens, “leaked.”

70. The law with regard to confidential information is of comparatively modern origin. It was above all developed to regulate the

behaviour of private parties and was based on the doctrine of trust. It is independent of contract. A recipient of a confidence must

not breach it by communicating the confidential information to third parties. It is, of course, capable of application both to purely

personal and to non-commercial information. The case of Prince Albert v Strange (1849) 1 Mac. G. 25 concerned drawings and

etchings made by Queen Victoria and Prince Albert of subjects of private and domestic interest to themselves. Certain plates had

been confided to a printer for the purpose of printing impressions for private royal use. They had found their way by surreptitious

means into the hands of persons wishing to publish a catalogue of them. An injunction was granted based on breach of confidence

and trust. The case of Duchess of Argyll v Duke of Argyll [1967] Ch. 302 concerned the publication of marital secrets.

71. The law of confidence has, however, developed more generally in a commercial context. Dismissed or defecting employees have

not infrequently purloined their former master’s technical or commercial information. While employees can be restrained in contract

without resort to the equitable doctrine, the latter becomes relevant when the information is conveyed to third parties who are on

notice of the confidential character of the information. A more specific type of application of the equitable principle has arisen where

information has been conveyed during negotiations for the establishment of a joint commercial venture. Many of the cases have

arisen from cases of failed negotiations. The recipient of the information is deemed to have received the confidential information on

trust solely for the purposes of the intended joint venture. If the negotiations fail, that recipient will, if necessary, be restrained from

using it or authorizing use of it without permission, for his own purposes. Kelly J cited a passage from the judgment of Megarry J (as

he then was) in Coco v A. N. Clark (Engineers) Ltd. [1969] R.P.C. 41 at 47. It neatly encapsulates the requirements for a successful

action based on breach of confidence, at least in a commercial setting. He said:

"In my judgment three elements are normally required if, apart from contract, a case of breach of confidence is to

succeed. First, the information itself, in the words of Lord Greene M.R. in the Saltman case on pg.215, must 'have the

necessary quality of confidence about it'. Secondly, that information must have been imparted in circumstances importing

an obligation of confidence. Thirdly, there must be an unauthorised use of that information to the detriment of the party

communicating it."

72. Megarry J gave further thought to the test for establishing the confidential character of information:

"First, the information must be of a confidential nature. As Lord Greene said in the Saltman case at pg.215, 'something

which is public property and public knowledge', cannot per se provide any foundation for proceedings for breach of

confidence. However confidential the circumstances of communication, there can be no breach of confidence in revealing

to others something which is already common knowledge. But this must not be taken too far. Something that has been

constructed solely from materials in the public domain may possess the necessary quality of confidentiality: for something

new and confidential may have been brought into being by the application of the skill and ingenuity of the human brain.

Novelty depends on the thing itself, and not upon the quality of its constituent parts.”

73. In the first case on this topic in this jurisdiction, House of Spring Gardens Ltd. and others v. Point Blank and others [1984] I.R.

611 Costello J reviewed, in great detail, the English decisions commencing with Prince Albert’s case. He was dealing with a case of the

failed-joint-venture type. His analysis of the law was approved by this Court. He cited, in particular two passages from English

decisions on the circumstances from which an obligation of confidence may be deduced. In Terrapin Ltd. v. Builders' Supply Co.

(Hayes) Ltd [1960] R.P.C. 128, Roxburgh stated (as reported on page 1317 of the report of Cranleigh Precision Engineering Ltd. v.

Bryant [1965] 1 W.L.R. 1317.):

"As I understand it, the essence of this branch of the law, whatever the origin of it may be, is that a person who has

obtained information in confidence is not allowed to use it as a spring-board for activities detrimental to the person who

made the confidential communication, and spring-board it remains even when all the features have been published or can

be ascertained by actual inspection by members of the public.”

Costello J cited with approval a very similar dictum of Lord Denning M.R. in Seager v Copydex Ltd.:

"The law on this subject does not depend on any implied contract. It depends on the broad principle of equity that he

who has received information in confidence shall not take unfair advantage of it. He must not make use of it to the

prejudice of him who gave it without obtaining his consent. The principle is clear enough when the whole information is

private. The difficulty arises when the information is in part public and in part private.”

74. From all of these cases, the contours of the equitable doctrine of confidence can be described sufficiently for the purposes of this

appeal, as follows:

1. The information must in fact be confidential or secret: it must, to quote Lord Greene, 'have the necessary quality of

confidence about it';

2. It must have been communicated by the possessor of the information in circumstances which impose an obligation of

confidence or trust on the person receiving it;

3. It must be wrongfully communicated by the person receiving it or by another person who is aware of the obligation of

confidence.

75. A fuller discussion and treatment, taking account of issues not relevant to the present case, may be found in R.G. Toulson and

C.M. Phipps, Confidentiality (Thomson Sweet & Maxwell London 2006).

76. An important point is, however, made by the defendant, namely that the confidence is vested in those who have created the

information or, as may in this case, have provided it to the Tribunal. The defendant relies on a decision of the Court of Appeal in

England in Fraser v Evans [1969] 1 Q.B. 349. In that case, a public relations consultant to the Greek Government under a contract

expressly imposing on him the duty never to reveal any information about his work made a written report to that government. A

version of the report in an English translation was surreptitiously obtained, and came into the hands of journalists from the “Sunday

Times,” who proposed to publish an article based on the report. The consultant obtained an interim and an interlocutory injunction.

The latter was set aside on appeal. Lord Denning M.R. referred to the cases on the issue of breach of confidence. At page 362, he

proceeded as follows:

"Those cases show that the court will in a proper case restrain the publication of confidential information. The jurisdiction

is based not so much on property or on contract as on the duty to be of good faith. No person is permitted to divulge to

the world information which he has received in confidence, unless he has just cause or excuse for doing so. Even if he

comes by it innocently, nevertheless once he gets to know that it was originally given in confidence, he can be restrained

from breaking that confidence. But the party complaining must be the person who is entitled to the confidence and to

have it respected. He must be a person to whom the duty of good faith is owed. It is at this point that I think Mr.

Fraser's claim breaks down. There is no doubt that Mr. Fraser himself was under an obligation of confidence to the Greek

Government. The contract says so in terms. But there is nothing in the contract which expressly puts the Greek

Government under any obligation of confidence……… It follows that they alone have any standing to complain if anyone

obtains the information surreptitiously or proposes to publish it. And they did not complain of the publication now

proposed…… On this short point it seems to me that Mr. Fraser himself cannot proceed on breach of confidence so as in

his own behalf to prevent "The Sunday Times" publishing the article.” (emphasis added)

77. That decision was referred to in argument, though not in judgment in Broadmoor Special Hospital Authority v Robinson [2000] Q.B.

775, where the plaintiff authority sought an injunction restraining publication by a mental patient of a book giving information about

other patients. The injunction was refused. The Court of Appeal stated that that the authority could not bring proceedings to protect

other patients' rights to privacy or confidence or to prevent distress to the victim's family unless the conduct complained of interfered

with the performance of the authority's own duties. These cases are also discussed in R.G. Toulson and C.M. Phipps on

Confidentiality, cited above.

78. This case is not, of course, of the same character as any of those discussed above. It does not concern relations between

private parties. In England, the principles of the law of confidence were extended to the workings of government in Attorney General

v Jonathan Cape Ltd [1976] 1 Q.B., which concerned an application to prevent the publication of Richard Crossman’s Diaries of a

Cabinet Minister. The injunction was refused, due to lapse of time, but the principle was established. Lord Widgery C.J. said at page

769:

“……these defendants argue that an extension of the principle of the Argyll [cited above] case to the present dispute

involves another large and unjustified leap forward, because in the present case the Attorney-General is seeking to apply

the principle to public secrets made confidential in the interests of good government. I cannot see why the courts should

be powerless to restrain the publication of public secrets, while enjoying the Argyll powers in regard to domestic secrets.

Indeed, as already pointed out, the court must have power to deal with publication which threatens national security, and

the difference between such a case and the present case is one of degree rather than kind. I conclude, therefore, that

when a Cabinet Minister receives information in confidence the improper publication of such information can be restrained

by the court, and his obligation is not merely to observe a gentleman’s agreement to refrain from publication.”

79. The “Spycatcher” case was, of course, the setting for the most extensive and strenuous reliance on these principles. The

attempts of the government of the United Kingdom to restrain publication of the memoirs of Mr Peter Wright extended almost

worldwide. The key principle established in all that litigation was that the government was not in a position to complain of breach of

its secrets and publication of confidential information on the same basis as private individuals.

80. The House of Lords had occasion to consider all aspects of the application of the doctrine to the publication of Mr Wright’s

memoirs in Attorney General v Guardian Newspapers [1990] 1 A.C. 109. I propose to cite the dicta regarding the need to show

detriment to the public interest. Lord Keith of Kinkel said at page 256:

“The position of the Crown, as representing the continuing government of the country may, however, be regarded as

being special. In some instances disclosure of confidential information entrusted to a servant of the Crown may result in a

financial loss to the public. In other instances such disclosure may tend to harm the public interest by impeding the

efficient attainment of proper governmental ends, and the revelation of defence or intelligence secrets certainly falls into

that category. The Crown, however, as representing the nation as a whole, has no private life or personal feelings

capable of being hurt by the disclosure of confidential information. In so far as the Crown acts to prevent such disclosure

or to seek redress for it on confidentiality grounds, it must necessarily, in my opinion, be in a position to show that the

disclosure is likely to damage or has damaged the public interest.”

81. To similar effect, Lord Griffiths at page 270 held:

“But whatever may be the position between private litigants, we have in this litigation to consider the position when it is

the Government that seeks the remedy. In my view, for reasons so cogently stated by Mason J. in Commonwealth of

Australia v. John Fairfax & Sons Ltd. (1980) 147 C.L.R. 39, which I will not repeat because they are fully cited in the

speech of Lord Keith of Kinkel, a government that wishes to enforce silence through an action for breach of confidence

must establish that it is in the public interest to do so. This is but another way of saying that the Government must

establish, as an essential element of the right to the remedy, that the public interest will suffer detriment if an injunction

is not granted.”

82. Lord Goff of Chieveley expressed the matter in somewhat different terms at page 283:

“In cases concerned with Government secrets,……… it is incumbent upon the Crown, in order to restrain disclosure of

Government secrets, not only to show that the information is confidential, but also to show that it is in the public interest

that it should not be published……… The reason for this additional requirement in cases concerned with Government

secrets appears to be that, although in the case of private citizens there is a public interest that confidential information

should as such be protected, in the case of Government secrets the mere fact of confidentiality does not alone support

such a conclusion, because in a free society there is a continuing public interest that the workings of government should

be open to scrutiny and criticism. From this it follows that, in such cases, there must be demonstrated some other public

interest which requires that publication should be restrained.”

83. In reaching these conclusions, several of the Law Lords referred with approval to the following dictum, quoted in extenso in the

speech of Lord Keith, of Mason J in his judgment in the High Court of Australia in Commonwealth of Australia v. John Fairfax & Sons

Ltd. (1980) 147 C.L.R. 39:

“The equitable principle has been fashioned to protect the personal, private and proprietary interests of the citizen, not

to protect the very different interests of the executive government. It acts, or is supposed to act, not according to

standards of private interest, but in the public interest. This is not to say that equity will not protect information in the

hands of the government, but it is to say that when equity protects government information it will look at the matter

through different spectacles.

It may be a sufficient detriment to the citizen that disclosure of information relating to his affairs will expose his actions

to public discussion and criticism. But it can scarcely be a relevant detriment to the government that publication of

material concerning its actions will merely expose it to public discussion and criticism. It is unacceptable in our democratic

society that there should be a restraint on the publication of information relating to government when the only vice of

that information is that it enables the public to discuss, review and criticise government action.

Accordingly, the court will determine the government's claim to confidentiality by reference to the public interest. Unless

disclosure is likely to injure the public interest, it will not be protected.”

84. It is of interest to note that the identical passage from the judgment of Mason J was cited with approval by Carroll J in her

judgment in Attorney General for England and Wales v Brandon Book Publishers Ltd. [1986] I.R. 597 at 601. That passage was, no

doubt, obiter to the decision of the learned judge. She held, quite correctly, that the plaintiff was not in a position to rely upon the

public interest of a foreign government before an Irish court. On the other hand, I believe that the dictum of Mason J is deserving of

the respect accorded to it by Carroll J, quite independently of the views of the House of Lords. I also believe that, since the Tribunal

clearly does not fit within the scope of the traditional type of case concerning breach of confidence between private individuals, it

must prove detriment to the public interest if it is to obtain the injunction sought.

Application of Legal Principles to the Facts of this Case

85. As I have already stated, this case concerns an attempt to impose a restriction on the exercise of the right guaranteed by both

the Constitution and the Convention to the free expression of convictions and opinions including the free communication of

information. Hence, the Tribunal must justify the order it seeks on the basis of an exception recognised by law. That is necessary in

the purely constitutional context. It is also necessary for the Tribunal to show that it can justify the order it seeks by reference to

one of the interests listed in Article 10(2) of the Convention.

86. In particular, since it seeks an order by way of prior restraint on publication, its application must be subjected to particularly strict

scrutiny.

Legal Justification; Prescribed by Law

87. I do not believe that the Tribunal has established any legal justification for its claim of confidentiality. It was expressly accepted

at the hearing of the appeal that there is no provision of the Tribunals of Inquiries Acts imposing confidentiality on the documentation

circulated by the Tribunal in the form of “briefs.” I have already mentioned that the Tribunal, while referring to section 4 of the

Tribunals of Inquiry (Evidence) (Amendment) Act, 1979 does not claim that an order has been made pursuant to that provision or

even that the section authorises such an order. It is not unknown for the Oireachtas to enact specific rules ordaining the

confidentiality of categories of documents or information under pain of criminal penalty: see for example section 37 of the

Commissions of Investigation Act, 2004. Similarly, the media are prohibited on pain of prosecution from publishing the proceedings of

the family courts.

88. The Tribunal relies, for this purpose on the statement accompanying the briefs, which says:

“The enclosed documents remain the property of the Tribunal and the information contained therein is confidential to the

Tribunal and may not be disclosed to any person other than your legal advisor, who is likewise restrained from disclosing

the contents thereof. You must retain the original documents in your possession. If it is your intention to copy any of the

documents enclosed, you must seek the consent of the Tribunal prior to doing so.”

89. Unlike the cases concerning communication of confidences, there is no question of trust here. That type of trust or confidence

arises from mutual arrangements of some sort, as in the joint venture cases. A person becomes the repository of confidences on an

implied basis of trust, firstly in the colloquial sense that the communicator trusts that person and, secondly, in the equitable sense of

trust. No such relationship is alleged here. The terms of confidentiality are imposed unilaterally by the Tribunal. They are extremely

restrictive. They extend to a person’s spouse or other close intimates or associates whether personal or business. I cannot accept,

as appeared to be suggested at the hearing that these are trivial or unimportant matters, which should not be taken seriously,

because the Tribunal would never enforce the terms so rigorously. I find myself in agreement with Kelly J, who said that he could “find

no authority statutory or otherwise, express or implied which enables the Tribunal to create such far reaching confidentiality, nor in

my view should this court enforce it.

90. Furthermore, I do not accept that the Tribunal has power to enforce the confidentiality of documents or information which are, or

as may well be the case, may be, confidential to persons who have assisted the Tribunal by making statements or giving information

or documents. I would not wish to pronounce definitively on whether the decision of the Court of Appeal in England in Fraser v Evans,

cited above, should be followed, without qualification, in this jurisdiction. I would merely make the following observations. The

Tribunal, especially in its notice of appeal, claims the right to seek the orders by way of injunction in the interests of protection of the

privacy or good name of persons who may be affected by publication. It would represent a substantial departure from the existing law

if courts were to make general orders of prior restraint in protection of the good name of individuals, even in applications at the suit

of those individuals themselves. In the exceptional cases where that is done, the person moving the court must place before it

cogent material to demonstrate that his or her name will be irreparably and seriously damage if an impending publication takes place.

The orders sought at present would be made on the presumptive and entirely speculative basis that publication of material circulated

by the Tribunal would damage the good name of unnamed and unspecified individuals without any showing whatever on the question

of damage. Furthermore, it would be done at the behest, not of the individuals, who would not be required to play any part, but of

the Tribunal.

91. I do not, in the preceding passage, intend to disparage the possibility that an individual, aware of impending media publication of

information communicated by him or her to the Tribunal, could succeed in obtaining an injunction. The law of defamation has

established principles in this area. An individual complaint grounded on the right to privacy might succeed by virtue of the mere fact

that the information (for example, an individual’s personal financial information) was private and personal. Unlike other jurisdictions, we

have not yet had cases of this sort. There is room for development of the law.

92. At the beginning of the paragraph before the preceding one, I mentioned documents or information which are confidential to

persons who have assisted the Tribunal by making statements or giving information or documents. Of course, the orders sought are so

broad as to affect potentially information which is not confidential at all and in respect of which the related individuals have sought no

undertaking as to its being kept confidential. As was stated at the hearing of the appeal, briefs are circulated to proposed witnesses

who are not themselves impugned by any allegation. Most particularly, I regard as strange, not to say bizarre, the notion that the

press may be restrained from publishing the fact that the Tribunal has circulated a document, even an entirely innocuous one, which

is already in the public domain. If it is already a public document, what is confidential about the fact of its having been circulated by

the Tribunal?

93. Finally, the question of whether the doctrine of confidence extends to the information of the government or of public authorities

has not yet been the subject of judicial determination in this jurisdiction. For what it is worth, I do not see any reason not to follow

the line of case-law which has been adopted in England. This point is more relevant to the question of whether the ground for the

restriction is prescribed by law for the purposes of Article 10(2) of the Convention, to which I now turn.

94. All of the reasons I have given amount to compelling reasons demonstrating that the restriction relied upon is not prescribed by

law. Clearly, steps taken for “preventing the disclosure of information received in confidence” is one of the exceptions recognised by

Article 10(2). However, the Tribunal has, for reasons already mentioned, not demonstrated any legal power to prevent those to whom

it communicates its briefs from communicating their contents. In this context, I would add that, in the present state of Irish law, and

acknowledging that it may develop, it is not established that governmental or other public or statutory bodies have the right to apply

for injunctions preventing the disclosure of confidential information. The Tribunal’s claim depends crucially on whether it has power to

impose a requirement of confidentiality on all recipients of its briefs. Since there is no express power, it asks the Court to rule that it

exists. In my opinion, the Court does not itself have such power. It cannot confer a power which the law has not conferred.

95. That is sufficient to dispose of the appeal. Nonetheless, I will consider the question of proportionality.

Proportionality

96. I have quoted in full at the beginning of this judgment the form of order sought in these proceedings. That is the form order

obtained by the Tribunal on 17th December 2004. Kelly J, in the High Court considered that this form of order could not be said to

impair the rights of the defendant as little as possible. He thought it was “entirely disproportionate to the aim being pursued and in

excess of any legitimate need.” He added:

“On the contrary, the order sought would prevent the defendants from publishing material that is already in the public

domain, that was not given to the Tribunal in confidence, that did not come into existence for the Tribunal's purposes and

whose owners may have no objection to the defendant publishing it. An injunction of the type sought goes much further

than one which could ever be required to address the Tribunal's alleged difficulties. Such an order would fetter and impede

the defendant to a much greater extent than could ever be regarded as necessary.”

96. In response to an invitation from counsel for the Tribunal that he frame a form of order which was less wide, he stated that it was

not the function of the court to do this. He also stated:

“I would have to have sufficient information to enable me to draft an order that is "sufficiently precise to enable (the

defendants) to understand its scope and foresee the consequences of (their) actions so that (they) can regulate (their)

conduct without breaking the law" (per Lord Hope). The order would also have to be drafted so as to protect only that

deserving of protection (truly confidential material) and impede the defendants in their entitlements to the minimal extent

reasonably possible. It would be difficult to draft such an order.”

97. Counsel for the Tribunal, at the hearing of the appeal, proposed the following modified form of order:

“An injunction restraining the Defendant (or any person having knowledge of the order herein) from publishing, using or

exploiting any information or document or any part thereof, forming part of or arising from the documentation circulated

by the Plaintiff as part of the fair procedures to vindicate the rights of those intended to appear before the Tribunal, as a

result of the circulation by the Plaintiff of documents for the purpose of the Tribunal’s public hearings:

(a) before such information and/or the contents of such document has been disclosed at a public hearing of the

Plaintiff; or

(b) until the Plaintiff has given express permission for the publication, use or exploitation of such information and/or

document,

such order not to apply to documents already in the public domain save that in the case of such documents the

Defendant (or any person having knowledge of the order herein) is restrained from publicizing the fact that they are part

of the documents so circulated.

98. It must be noted, at the outset, that this order does not relate in any way to the documents already published in 2004 or indeed

to any specified document. It relates generally to all documentation which will be circulated by the Tribunal in the future. It applies

and is intended to apply to everybody and, in particular, to the entire of the media, not merely to the defendant and its newspapers

but to all other newspapers and other news media. It neither specifies nor identifies any particular documents. The expression, “any

information or document or any part thereof, forming part of or arising from the documentation circulated,” is both vague and

ambiguous. The original formulation depended only on whether the Tribunal had purported to impose the requirement of

confidentiality; to that extent, it had the merit of clarity. The new formulation introduces the notion that the documents shall have

been: “circulated by the Plaintiff as part of the fair procedures to vindicate the rights of those intended to appear before the

Tribunal.” The Court has been informed that “briefs” are circulated to persons who are not at all impugned. The amended formulation

would appear not to affect such recipients. If so, the order would be pointless. Furthermore, it applies to “information……arising from

the documentation circulated,” which could mean anything. Who is to decide what documents are “in the public domain”?

99. The defendant has referred to the dictum of Lord Nicholls in Attorney-General v Punch Ltd [2003] 1 A.C. 1046 at 1055:

“An interlocutory injunction, like any other injunction, must be expressed in terms which are clear and certain. The

injunction must define precisely what acts are prohibited. The court must ensure that the language of its order makes

plain what is permitted and what is prohibited. This is a well established, soundly-based principle. A person should not be

put at risk of being in contempt of court by an ambiguous prohibition, or a prohibition the scope of which is obviously open

to dispute. An order expressed to restrain publication of "confidential information" or "information whose disclosure risks

damaging national security" would be undesirable for this reason.”

100. I do not regard either the original or the amended formulation of the proposed order as satisfactory. I do not believe that any

satisfactory formulation is capable of being devised.

Conclusion

101. The Tribunal seeks an order which will restrict freedom of expression. It claims that the press should be restrained from

publishing information which it has designated as confidential. It has not been able to identify any legal power which it possesses to

designate information released by it in that way. It seeks an order in very wide terms in respect of unspecified information, which

would affect the entire media.

102. In my view, the learned trial judge correctly dismissed the Tribunal’s application. I would dismiss the appeal.