It has been another strange week for freedom of expression. (The last roundup of this sort of perfect storm was back here in September).

In Ireland, the decision of a Divisional High Court on proceedings brought by the Mahon Tribunal against the editor of and a journalist with the Irish Times. The paper, unsurprisingly, is not cooperating with an investigation into documents leaked to it.

The decision of the High Court (PDF here) is causing quite some concern to the Irish media and to commentators. See, e.g. Roy Greenslade, Blurred Keys. In short, the High Court ruled that the journalists were required to disclose information to the Tribunal, finding that the expression/media rights were outweighed by the need to preserve confidence in the tribunal. So far, so Irish.

I do think, though, that the language causes some concern – after reciting the familiar ECHR cases, we end up with things like:

As the history of these cases show journalists should have little to fear and certainly no grounds for thinking that their right not to reveal sources does not or would not be given just consideration and vindicated where appropriate.

(“Nothing to fear” is not something that Irish journalists have ever said. Need I remind you that Ireland’s constitutional free speech/press/expression/communication guarantee is (textually) very limited and wasn’t successfully used to strike down a statute until this year…)

Against this background the deliberate decision taken by the defendants to destroy the documents at issue in this case after they had received a summons to produce these to the Tribunal and after having taken legal advice, is an astounding and flagrant disregard of the rule of law


It need hardly be said, that such a manner of proceeding is anathema to the rule of law and an affront to democratic order. If tolerated it is the surest way to anarchy.

Journalists must realise that paying lip service to democratic values is not enough.

(Using this sort of language disturbs me, especially given the wide scope given to the State to protect ‘public order’ – if journalistic practices are defined as tending towards anarchy, it can only make further restrictions easier to defend?)

The case is disposed of through applying the Convention ‘necessary in a democratic society’ test, although it seems to be more of a discussion than a test, and (astonishingly) the word ‘proportionality’ does not appear in the judgement. I had to check three times to see if I was missing something – but apparently, yes, this is 2007 and we can discuss restricting Article 10 rights without mentioning proportionality. Silly little me.

Another thing that puzzles me, and I can’t figure it out, is how the discussion on freedom of expression is entirely related to the Convention, and although it’s clear from the recital of the pleadings that Article 40.6.1 was presented to the judges, it is not mentioned or even alluded to in the discussion. Are we to assume that the Court didn’t even see the point in trying to address the constitutional claim, given the ease with which they found the actions of the tribunal in accordance with the (commonly understood to be further-reaching) Convention right?

In Strasbourg, the European Court of Human Rights itself was announcing its decision in a long-running case that started off as being a dispute between French fascists on one hand and an author and the leftish newspaper Liberation on the other. The case is Lindon, Otchakovsky-Laurens and July v. France. It’s a little hard to understand how this was so easy to treat as a crime – the novel in question is a satire (albeit one attacking the Front National quite vehemently). After the courts came down hard on the author/publisher of the book, 97 authors signed an article in Liberation criticising the decisions and agreeing with some of the anti-Le Pen comments. Yes, you’ve got it, the newspaper ended up in court too. I’m sorry to say that the Court did not find in favour of the authors, publishers and newspaper, as it was necessary in a democratic society ‘in order to protect the reputation and rights of Mr Le Pen and the Front National’.

We do have the consolation of the concurring opinion by Judge Loucaides, though, who says (thanks to contentandcarrier for spotting this!) that “the suppression of untrue defamatory statements, apart from protecting the dignity of individuals, discourages false speech and improves the overall quality of public debate through a chilling effect on irresponsible journalism”. Apparently a chilling effect is a good thing now! William Brennan rolls in his grave. Eep.

And finally, in the UK we have this fabulous speech by Gordon Brown, a wide-ranging talk (including announcements, history, philosophy, law and more) that included a commitment to softening the law on protests near Parliament and more. This speech is a must-read; you must read it. (Let’s see what action comes out of it, though!)