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journalistic privilege, confidential source protection, article 10 ECHR, article 40.6.1º Bunreacht na hÉireann, media freedom, police powers
Legal protection for confidential journalist sources has often been a site of tension and dispute between journalists, the police and the courts. Journalists routinely claim that freedom of expression guarantees provided for under international and domestic human rights instruments include a legal privilege against disclosure of confidential journalist sources. This claim is often raised to resist compelled disclosure of journalistic materials to police as part of criminal investigations. Courts in many jurisdictions have forcefully repudiated this legal claim, though many recognise some right for journalists to refuse disclosure. Some courts have reluctantly conceded to the naming of this right as ‘journalistic privilege’.
In 2020, courts on both sides of the Irish border were called upon to vindicate this right against disclosure. This recent flurry of litigation has, in the Republic of Ireland, built upon more than a decade of significant legal developments around ‘journalistic privilege’. These latter developments have dramatically expanded the scope of the Irish Constitution’s freedom of expression guarantees.
This article critically reviews this last decade of significant legal developments around ‘journalistic privilege’ in the Republic of Ireland. It examines the two recent and highly significant Irish determinations from 2020 in Fine Point Films and Corcoran, and how the former Northern Irish judgment has created significant new avenues for legal development in the Republic of Ireland. The article also identifies and considers some important, emergent themes in Strasbourg’s article 10 jurisprudence: specifically an apparent new ‘source motive’ test for article 10 protection of confidential source material.