The Charleton Tribunal has said Garda Commissioner Nóirín O’Sullivan, her predecessor Martin Callinan and former head of the Garda press office Supt David Taylor have all signed documents releasing any privilege they may have in relation to confidential conversations with journalists.

The development is an interesting one in the ongoing dance, so to speak, between the tribunal, which is investigating an alleged smear campaign against Garda whistleblower Sgt Maurice McCabe and journalists and their media organisations who may have relevant information.

It raises the issue of whether journalistic privilege is analogous to the privilege that exists between a client and his or her solicitor, which the client can waive, freeing the solicitor to disclose what was hitherto protected information.

Public good

In much of the case law on journalistic privilege, it is recognised as a public good which serves the purpose of ensuring a flow of information into the public domain, in the public interest.

Seen in this way, a statement by someone who disclosed information in confidence to a journalist, that he or she is no longer holding the journalist to any obligation of confidentiality, is not the end of the matter.

Journalistic privilege is not an absolute one and has to be balanced against other public goods, such as, for example, the work of a tribunal appointed by the Oireachtas to investigate a matter of significant public concern.

Mr Justice Peter Charleton, in his interim report, said some journalists had given witness statements in which they helpfully specified conversations that had taken place outside of what they perceived to be the cloak of any [journalistic privilege], “if it exists”.

“Others have refused to say whether there is any relevant testimony which they might offer. The extent of that privilege and the circumstances under which it arises are both likely to occupy time.”

Given the possibility that trying to force a journalist to reveal the contents of a conversation he or she regards as privileged could lead to lengthy and very expensive litigation, perhaps all the way to the Supreme Court, it is a given that everyone involved is hoping that can be avoided.

The argument that a journalist should not reveal the content of conversations he or she believes were “off the record”, when the party who they were talking with has said they don’t mind if it they do, may be a difficult one to make, especially if it would be presented as frustrating the tribunal’s work.

But if the object of journalistic privilege is to encourage the public perception that journalists can be trusted to maintain confidentiality, that it is part of their code, then what will be the effect of journalists giving sworn evidence to a tribunal, ever when the “source” has said they have no difficulty with their doing so?

Public perception

If journalistic privilege has its worth in that it inspires confidence in potential sources of information, then the key issue is public perception.

It is hard to see how a series of journalists giving information to a tribunal about private conversations, so it can make findings about an alleged smear campaign, would not damage public confidence in the confidentiality of their dealings with journalists.

The details will be lost on the public, and the disclosures by the journalists will be the main impression formed. It is possible that disclosures by journalists could be deciding testimony in the investigation.

From the point of view of the media, that would be a deeply troubling outcome. And if the media is right in its concern, then the public should be worried too.