High Court: Drafts of article allegedly defaming solicitor are covered by journalistic privilege

About this case:

• Judgment:
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Accepting evidence on behalf of the newspaper which stated that the deleted portions of the article were removed on the basis that they could have identified a confidential source, Mr Justice Anthony Barr said that there was significant risk of identification if the emails were made public by way of discovery.

Background

In March 2016, the Irish Daily Star (owned by Independent Star Ltd) published an article which named Gerald Kean, a practising solicitor, and “meant and was understood to mean that his offices had been searched by the police because they felt that he had had some dealings with a well-known criminal drug gang”.

Thereafter he issued proceedings suing for damages, including aggravated and/or exemplary damages, for defamation

Independent Star denies that the article contains defamatory meanings, and pleads that the material complained of was fair and reasonable publication on a matter of public importance. Furthermore, it will rely upon the defence of truth pursuant to s.16 of the Defamation Act 2009.

Order for discovery

In the High Court in February 2017, Independent Star was ordered to make discovery of, inter alia:

“All documents in the power possession or procurement of the defendant its servants or agents and in particular in the power possession or procurement of Michael O’Toole evidencing and/or referencing and/or identifying and/or referring to information available to them between 7th March, 2016 and 11th March, 2016 (inclusive) concerning the preparation and/or investigation and/or publication by the defendant of the article about the plaintiff.”

In the affidavit of discovery made on behalf of Independent Star, it was asserted that some of the documents were subject to journalistic privilege.

In November 2017, Independent Star was ordered to set out the basis on which it claimed journalistic privilege, however no further affidavit was filed in response to this.

Journalistic privilege

In the present application, Mr Kean sought an order striking out the defence for failure to comply with the High Court’s order, and an order that the Court inspect the documents and rule on whether they were properly covered by journalistic privilege.

In response, an affidavit was sworn on behalf of Independent Star which stated that journalistic privilege applied because a source for the article may have been identifiable by a “reading of these emails, either in isolation or in conjunction with other extraneous knowledge or information”.

The journalist who wrote the article swore an affidavit stating that the emails sought by Mr Kean in discovery were covered by journalistic privilege:

“I say and believe that it is necessary to protect the source/sources for this article. I say that as a journalist it is vital that the sources of information have the fullest and utmost confidence that their identities will not be revealed, either directly or indirectly by means of deduction, elimination or by “jigsaw” identification. In my experience even certain references and comments may yield clues to a source”

Two particular emails were furnished to the Court, which Justice Barr described as earlier drafts of the article. Justice Barr said that it appeared that the author of the article came to the conclusion that it was necessary to delete certain excerpts from these drafts before the article was published, so as to protect the identity of his source or sources.

Justice Barr said that the court had to give considerable weight to the fact that the journalist had himself come to the conclusion that this was necessary.

Accepting the assertion that the source may be identifiable through “jigsaw identification” by those with more in-depth knowledge or information, Justice Barr said that there would be a significant risk that the source(s) may be identified if the deleted portions of the drafts were made public by way of discovery.

In all the circumstances, Justice Barr was satisfied that the two emails were covered by journalistic privilege.