In Mahon Tribunal v Keena [2009] IESC 64 (31 July 2009) (also here (pdf) (to which I will refer as Mahon Tribunal v Keena (No 1)) the Irish Times successfully resisted an attempt by the Mahon Tribunal to compel the Editor and Public Affairs Correspondent of the Irish Times to disclose the source of a leaked Tribunal document. However, in Mahon Tribunal v Keena [2009] IESC 78 (26 November 2009) (to which I will refer as Mahon Tribunal v Keena (No 2)), the Court held that the journalists should pay the Tribunal’s costs of more than €600,000.

In yesterday’s post, I argued that this was illogical: if the journalists had a privilege to with-hold the document and decline to answer the questions, then they had the privilege, and it doesn’t matter what they did with the document, and taking objection to its destruction by the journalists is neither here nor there. However, even if this might provide some justification for some punishment of the journalists, nevertheless, the European Court of Human Rights is very likely hold that this punishment is inconsistent with Article 10 of the European Convention on Human Rights. A crucial case in this respect is Cumpana and Mazare v Romania 33348/96, (2005) 41 EHRR 14, [2004] ECHR 692 (17 December 2004), where the Court held that although some penalty would have been appropriate, disproportionately severe sanctions infringed the applicant journalists’ Article 10 rights. That Article provides:

(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 the rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.

Given the centrality of the media to that Article – a centrality acknowledged by the Supreme Court in Mahon v Keena (No 1) – the costs order is a prima facie infringement of Article 10(1). Of course, infringements of Article 10(1) can be justified on the basis of Article 10(2), provided that the infringement is “prescribed by law” and “necessary” to meet a legitimate aim set out in that paragraph. On these questions, the analysis in Cumpana and Mazare v Romania is extremely important, but it is necessary to locate it in the context of the ECHR’s general Article 10 caselaw.

For the costs order to meet a legitimate aim, of the aims set out in Article 10(2), the most likely to justify the costs order are “for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary”. The Tribunal certainly has an interest in maintaining the confidentiality of its procedures, and its orders against the journalists were made by members of the judiciary, so the ECHR is very likely to accept that the costs order was made to protect one or the other of these iterated legitimate aims.

For the costs order to be prescribed by law, the ECHR requires that the law in question must have been formulated with sufficient precision that its application is reasonably foreseeable (Sunday Times v United Kingdom (No 1) 6538/74, (1980) 2 EHRR 245, [1979] ECHR 1 (26 April 1979); Open Door v Ireland 14234/88, (1993) 15 EHRR 244, [1992] ECHR 68 (29 October 1992); Tolstoy Miloslavsky v United Kingdom 18139/91, (1995) 20 EHRR 442, [1995] ECHR 25 (13 July 1995)). It is relatively rare that administrative action will be held by the ECHR as not having been prescribed by law in this sense. But there is a recent example. In Kenedi v Hungary 31475/05, [2009] ECHR 786 (26 May 2009) the Court held that the obstinate reluctance of the respondent State’s authorities to comply with court judgments granting the applicant historian access to State archives was in defiance of domestic law and tantamount to arbitrariness, and that such a misuse of the power vested in the authorities could not be characterised as a measure “prescribed by law”.

At Irish law, Order 99 Rule 1 RSC embodies both the basic rule that costs follow the event and the qualification that this is subject to the court’s discretion (see O’Keeffe v Hickey [2009] IESC 39 (06 May 2009) [4]-[5]). Applying this, in Mahon Tribunal v Keena (No 2), Murray CJ held:

As explained in Dunne v Minister for the Environment [2008] IR 775, 780, [2007] IESC 60 (06 December 2007) (Murray CJ), there “has been no fixed rule or principle determining the ambit of [the exercise of the court’s] discretion and, in particular, no overriding principle which determines that it must be exercised in favour of an unsuccessful plaintiff in specified circumstances or in a particular class of case.” More generally, it is not in doubt that the Court has jurisdiction, to be exercised in exceptional cases, to order a successful party to pay the costs of the unsuccessful party.

The discretion at issue in Dunne is often invoked by the losing party in a constitutional action alleging a matter of public interest seeking either to avoid paying the State’s costs or even to have the State bear all the costs. Although such cases demonstrate that there is a jurisdiction to order a successful party to pay the costs of an unsuccessful party, it is one which seems heretofore to have been exercised in favour of rather than against parties suing state entities, and the question for the ECHR will be whether this extension of the jurisdiction was sufficiently reasonably foreseeable to be “prescribed by law”.

For the costs order to be necessary, it must be proportionate to the legitimate aim(s) being pursued. The Court has regularly emphasised that the nature and severity of the penalties imposed are factors to be taken into account when assessing the proportionality of an interference with the freedom of expression guaranteed by Article 10. For example, in Tolstoy Miloslavsky v United Kingdom (above), the Court held that a libel award three times the size of the highest libel award previously made in England, taken in conjunction with the lack of adequate and effective safeguards at that time against a disproportionately large award, infringed Article 10. Again, in Ceylan v Turkey 23556/94, (2000) 30 EHRR 73, [1999] ECHR 44 (8 July 1999), the president of a trade union wrote a newspaper article in Marxist language calling on workers to unite against Turkey’s action in eastern and south-eastern Anatolia; he was convicted of incitement to hatred, and sentenced to one year and eight months in prison, a fine of 100,000 Turkish lira, and the loss of a number of political and civil rights.The Court held that a such a severe penalty for political speech was a disproportionate interference with Article 10.

Moreover, in Skalka v Poland 43425/98, [2003] ECHR 256 (27 May 2003), a prisoner who complained about a judge (a “cretin” who was one of the court’s “irresponsible clowns) to the President of the relevant court was convicted of insulting a State authority and sentenced to eight (further) months in prison. The Court held that, whilst a lesser punishment could well have been justified, the sentence was a harsh and severe punishment which exceeded the seriousness of the offence, and thus constituted a disproportionate interference with Article 10. Furthermore, in Kwiecien v Poland 51744/99, (2009) 48 EHRR 7, [2007] ECHR 4 (9 January 2007)), the applicant wrote an open letter to a local election candidate, calling on him to withdraw from the election on the grounds that he had carried out his duties ineptly, maliciously and unlawfully, and was in summary proceedings ordered to pay him PLN 10,000 in damages and a similar sum to charity (the maximum penalties in the circumstances), and to publish a retraction and apology in a similar open letter and in the local newspaper. The Court held that the applicant’s claims were value judgments and political speech in the public interest, that summary proceedings should not result in the undue curtailment of procedural guarantees, and that a penalty must bear a reasonable relationship of proportionality to the injury suffered. Since the Polish court had failed to provide any reasons to justify the imposition of the maximum pecuniary sanctions, it had failed to carry out any assessment of the proportionality of the damages. The Court therefore held that the damages awarded against the applicant were excessive and amounted to a violation of Article 10 of the Convention.

Not only has the Court regularly considered that severe penalties can, of themselves, amount to an infringement of Article 10, it has also been particularly critical of sanctions that are likely to have a chilling effect on the exercise of Article 10 rights, especially by journalists. For example, in Jersild v Denmark (23 September 1994) 15890/89, (1995) 19 EHRR 1, [1994] ECHR 33 (23 September 1994), during the course of a serious television programme for a well-informed audience, the applicant conducted a short and balanced interview with a group of extremist youths who made abusive and derogatory remarks about immigrants and ethnic groups in Denmark. The youths were convicted of hate speech; the applicant was convicted of aiding and abetting them, and was fined 2,000 Danish kroner. The Court reiterated its familiar trope that freedom of expression constitutes one of the essential foundations of a democratic society and that the safeguards to be afforded to the media in their vital role of “public watchdog” are of particular importance, and held that the punishment of a journalist, for broadcasting statements made by an interviewee, would seriously hamper the contribution of the press to discussion of matters of public interest, and should not be envisaged unless there are particularly strong reasons for doing so. Moreover, the Court rejected the Government’s argument that the fine was limited, holding that what mattered was that the journalist was convicted. In these circumstances, the Court held that the conviction was a disproportionate infringement on the applicant’s Article 10 rights.

Again, in Wille v Liechtenstein 28396/95, (2000) 30 EHRR 558, [1999] ECHR 107 (28 October 1999), a senior judge and former government Minister argued in a lecture that the Liechtenstein Constitutional Court was competent to decide on the interpretation of the Constitution in cases of disagreement between the Prince and the people (Diet). The Prince wrote to the applicant objecting to this view, and informing him that that he would not appoint him to any public office in the future. When the applicant was in due course nominated for reappointment to his judicial post, the Prince refused to do so. The Court held that the announcement by the Prince of his intention not to reappoint the applicant constituted a reprimand for his lecture which had a chilling effect upon him, discouraging him from making similar statements in the future, and thus amounted to a disproportionate interference with the applicant’s right to freedom of expression. Moreover, inNikula v Finland 31611/96, (2004) 38 EHRR 45, [2002] ECHR 324 (21 March 2002), a defence counsel had criticised in court the decision of the public prosecutor to press charges against her client but not against another person as an abuse of evidence and procedure which amounted to role manipulation in breach of his official duties. She was was convicted of negligently defaming him; she was fined FIM 4,260 (EUR 716), ordered to pay the prosecutor FIM 3,000 (EUR 505) in damages, and required to pay FIM 300 (EUR 50) in costs to the State. The Supreme Court discharged the fine but upheld the remainder of the sentence. The Court held that the Finnish court could have dealt with her criticisms in various less severe ways, and that it was primarily for counsel themselves, subject to supervision by the bench, to assess the relevance and usefulness of a defence argument without being influenced by the potential “chilling effect” of even a relatively light criminal penalty or an obligation to pay compensation for harm suffered or costs incurred. As a consequence, the Court held that the conviction amounted to a disproportionate interference with the applicant’s right to freedom of expression.

Furthermore, in Cumpana and Mazare v Romania 33348/96, (2005) 41 EHRR 14, [2004] ECHR 692 (17 December 2004) – a case of great significance for the likely fate of the costs order against the Editor and Public Affairs Correspondent of the Irish Times – the applicants (a journalist and editor) published an article (and accompanying satirical cartoon) alleging that a former deputy mayor and former local council legal advisor (who was then a serving judge) were responsible for a series of offences relating to an irregularly granted local authority contract with a private parking enforcement contractor. An official report issued by the Audit Court a month after the publication of the article found irregularities with the granting and operation of the contract. Nevertheless, the applicants were convicted of criminal insult and defamation of the judge; they were sentenced to three months’ imprisonment for insult and seven months’ imprisonment for defamation, and directed to serve the heavier sentence immediately; they were disqualified from exercising certain civil rights and from working as journalists for a year; and they were ordered to pay the judge ROL 25,000,000 (EUR 2,033) in damages. However, they did not serve the sentence and were ultimately pardoned. The Court stressed once again the vital role of “public watchdog” which the press performs in a democratic society, and held that the management of public funds and the decisions of the city authorities were indisputably matters of general interest to the local community which the applicants were entitled to bring to the public’s attention through the press. Moreover, although

[96] … the report in question had been adopted approximately one month after the article was published, the Court would point out that the role of investigative journalists is precisely to inform and alert the public about such undesirable phenomena in society as soon as the relevant information comes into their possession. It is clear from the article that at the time it was written the applicants had knowledge, if not of the Audit Court’s final report, at least of its initial version …; the means used by the applicants to obtain a copy of the document in question fall within the scope of the freedom of investigation inherent in the practice of their profession.

In other words, Article 10 entitled the reporter and editor to rely upon a leaked version of the Audit Court’s report. Indeed, the Court went on to reiterate its settled case-law that the protection of journalists’ sources is one of the cornerstones of freedom of the press and that, without such protection, sources may be deterred from assisting the press in informing the public on matters of public interest ([106], citing Goodwin v United Kingdom 17488/90, (1996) 22 EHRR 123, [1996] ECHR 16 (27 March 1996) and Roemen and Schmit v Luxembourg 51772/99, [2003] ECHR 102 (25 February 2003)).

Nevertheless, the applicants did not seek to rely upon the Audit Court report during the proceedings against them, they could have done so without disclosing the names of their sources, and the report itself did not substantiate the allegations against the judge and the former deputy mayor. Hence, the Court held that the Romanian authorities were entitled to consider it necessary to restrict the exercise of the applicants’ right to freedom of expression. However, the Court held that the sanctions imposed were disproportionately severe. The Court reiterated that the nature and severity of the penalties imposed are factors to be taken into account when assessing the proportionality of an infringement of Article 10, especially where the sanctions are such as to dissuade the press from taking part in the discussion of matters of legitimate public concern (see [111], citing, inter alia, Jersild (above)). The Court held that the sanctions imposed were undoubtedly very severe, and that states’ restrictions on freedom of expression to protect the reputations of others must not

[113] … unduly deter[] the media from fulfilling their role of alerting the public to apparent or suspected misuse of public power … Investigative journalists are liable to be inhibited from reporting on matters of general public interest – such as suspected irregularities in the award of public contracts to commercial entities – if they run the risk, as one of the standard sanctions imposable for unjustified attacks on the reputation of private individuals, of being sentenced to imprisonment or to a prohibition on the exercise of their profession.

[114] The chilling effect that the fear of such sanctions has on the exercise of journalistic freedom of expression is evident … This effect, which works to the detriment of society as a whole, is likewise a factor which goes to the proportionality, and thus the justification, of the sanctions imposed on the present applicants, who, as the Court has held above, were undeniably entitled to bring to the attention of the public the matter of the signing of the partnership agreement between the city authorities and the private company concerned …

[116] The circumstances of the instant case – a classic case of defamation of an individual in the context of a debate on a matter of legitimate public interest – present no justification whatsoever for the imposition of a prison sentence. Such a sanction, by its very nature, will inevitably have a chilling effect, …

Furthermore, the order disqualifying the applicants from exercising certain civil rights was particularly inappropriate. In particular, the order prohibiting the applicants from working as journalists for one year amounted to a particularly severe prior restraint that could not in any circumstances have been justified by the mere risk of the applicants’ reoffending, and amounted to an unjustifiable infringement of the principle that the press must be able to perform the role of a public watchdog in a democratic society.

For all of these reasons, the Court held that although an interference with the applicants’ right to freedom of expression may have been justified in the circumstances, the various sanctions imposed upon them were manifestly disproportionate in their nature and severity and went beyond what would have amounted to a “necessary” restriction on the applicants’ freedom of expression. There was therefore a violation of Article 10 of the Convention.

Cumpana and Mazare v Romania plainly demonstrates that, even where some sanctions are warranted, disproportionately severe sanctions which unduly deter the media from fulfilling their role of a public watchdog alerting the public to apparent or suspected misuse of public power can infringe Article 10. Moreover, the earlier authorities demonstrate that this conclusion is soundly based in a strong and consistent line of ECHR authority. The relevance of this conclusion to the costs order made by the Supreme Court in Mahon Tribunal v Keena (No 2) is obvious. The punitive nature and extreme severity of a costs order in the region of €600,000, made in what were effectively summary proceedings, punishing a classic case of political speech on a matter of public interest, will inevitably have a chilling effect in the future on journalists’ decisions whether to assert a journalist source privilege to justify a failure to comply with an order to produce a document or to answer a question, and will therefore unduly deter the media from fulfilling their vital role of public watchdog alerting the public to apparent or suspected misuse of public power.

In summary, then, even if the costs order does serve a legitimate aim, there may be questions as to whether it is sufficiently prescribed by law, and even if some sanction were justified, it is very difficult indeed to see how the severe costs order is a proportionate and thus necessary restriction upon the journalists’ Article 10 rights. As a consequence, and as the title to this post argues, the Irish Times should appeal the costs order to the European Court of Human Rights.