High Court: Bloggers can benefit from journalistic privilege

There's quite a lot to digest in the recent decision of Hogan J. in Cornec v. Morrice & Ors. Most of the judgment deals with wider issues in the protection of journalists' sources, and unsurprisingly the media coverage so far tends to focus on this aspect. But reading the judgment, I was struck by the way in which it considered whether non-traditional media could also benefit from similar protections. In particular, it appears to be the first Irish judgment to consider the position of bloggers.

In this case orders were sought to compel two individuals - Nicola Tallant and Mike Garde - to testify for the purposes of US civil proceedings. Both objected to the orders on various grounds, including the argument that requiring their testimony would reveal both their sources and the information provided by these sources, contrary to their journalistic privilege recognised by Irish law. ("Journalistic privilege" is used here as shorthand - para. 42 of the judgment makes it clear that strictly speaking there is no such thing. Nevertheless it is a useful phrase to capture the rights which journalists may have in certain situations.)

In the case of Nicola Tallant, an investigative reporter with the Sunday World, there was no difficulty in applying the concept of journalistic privilege. The position of Mike Garde was rather more ambiguous. As the court put it, he was "not a journalist in the strict sense of the term". Instead, he was a director of Dialogue Ireland - an independent organisation working with people who become caught up in cults or fringe religions - and regularly appeared in the media and blogged about issues surrounding cults. Despite this, however, Hogan J. had no hesitation in finding that he should also benefit from a similar protection, holding that:

While Mr. Garde is not a journalist in the strict sense of the term, it is clear from that his activities involve the chronicling of the activities of religious cults. Part of the problem here is that the traditional distinction between journalists and laypeople has broken down in recent decades, not least with the rise of social media. It is probably not necessary here to discuss questions such as whether the casual participant on an internet discussion site could invoke Goodwin-style privileges, although the issue may not be altogether far removed from the facts of this case.

Yet Mr. Garde’s activities fall squarely within the “education of public opinion” envisaged by Article 40.6.1. A person who blogs on an internet site can just as readily constitute an “organ of public opinion” as those which were more familiar in 1937 and which are mentioned (but only as examples) in Article 40.6.1, namely, the radio, the press and the cinema. Since Mr. Garde’s activities fall squarely within the education of public opinion, there is a high constitutional value in ensuring that his right to voice these views in relation to the actions of religious cults is protected. It does not require much imagination to accept that critical information in relation to the actions of those bodies would dry up if Mr. Garde could be compelled to reveal this information, whether in the course of litigation or otherwise. It is obvious from the very text of Article 40.6.1 that the right to educate (and influence) public opinion is at the very heart of the rightful liberty of expression. That rightful liberty would be compromised – perhaps even completely jeopardised – if disclosure of sources and discussions with sources could readily be compelled through litigation. [Emphasis added]

This strikes me as a very important ruling - by explicitly equating blogs and other new media forms with the traditional "organs of public opinion" protected by the Constitution it may well strengthen the position of internet authors not just in relation to the protection of sources but also in other areas such as defamation.

Hillsborough: using police databases to smear the dead

Yesterday saw the publication of the Report of the Hillsborough Independent Panel which confirmed many of the criticisms made by the families of those killed in the disaster. One of the most shocking points in that report for me was the revelation that criminal record checks were carried out on some of the dead, with a view to smearing them and deflecting criticism of police handling of the event. This illustrates an important point that privacy campaigners have been making for a long time: centralised databases of this type can and will be abused, and the power to trawl databases for information on individuals - in effect, to manufacture a case against them - is a dangerous one. It's not hard to imagine how data retention records might be abused in a similar way in future. With that in mind, here's an excerpt from the Report setting out what was done:

Criminal record checks on the deceased

2.5.111 A solicitor involved in the Hillsborough inquests disclosed a document to the Panel showing that criminal record checks were conducted selectively on some of the deceased who had recorded blood alcohol levels. To protect the privacy of the deceased the Panel has decided not to make public the document but to describe the process through which an attempt was made to establish links between blood alcohol levels and previous criminal convictions.

2.5.112 The document indicates that a Police National Computer (PNC) check was conducted on all who died at Hillsborough for whom a blood alcohol reading above zero was recorded. It includes a handwritten list of the names, dates of birth, blood alcohol readings and home addresses of 51 of the deceased and provides screen-prints apparently drawn from the PNC. A summary of the results appears on the front page, establishing the number ‘with cons’ (convictions).

2.5.113 The document was not formally part of the West Midlands or South Yorkshire Police inquiries and there is no record in the documents provided by either force or by the Coroner. There is no record of who conducted the checks or precisely when the checks occurred. The National Policing Improvement Agency, the organisation responsible for the PNC, confirmed to the Panel that information has not been retained within the PNC.

2.5.114 It is the Panel’s view that criminal record checks were carried out on those of the deceased with recorded blood alcohol levels in an attempt to impugn personal reputations. There is, however, no evidence to suggest that this inappropriate – and possibly unlawful – exercise was used in the investigations, inquiries or inquests.