Presentation by Séamus Dooley, Irish Secretary, National Union of Journalists to the Committee
on Finance, Public Expenditure and Reform, 23rd May 2012.
I join with Gerry Curran, Cathaoirleach, Irish Executive Council, in thanking the Chairman and
members for the invitation to address the committee on the Draft heads of the General Scheme of
Protected Disclosure in the Public Interest Bill, 2012.
Chairman, I know you have a long and abiding commitment to the concept of a free media, reflected
in your direct involvement in the Let in the Light campaign, with which this union was proudly
associated.
It will come as no surprise to know that the NUJ sees this Bill as one of set of measures needed to
create a new culture of transparency in Irish society, replacing the traditional Whitehall approach of
secrecy with a culture of open government and open governance across the public and private
sector, including the media and the trade union movement.
In the context of this Bill it may be worth prefacing our brief contribution with a quote from an
unlikely source:
"If people don't know what you're doing, they don't know what you're doing wrong."
Sir Humphrey Appleby was advising against open government because he appreciated the risks
associated with governing behind a pane of glass.
The primary function of this Bill is to provide appropriate measures for a whistlelblower to disclose
information through agreed channels. The Bill adopts a stepped approach to disclosure. If I have a
reservation it concerns the ability of employers to circumvent legislation and the requirement of due
process, something as a union official with which I am all too familiar.
This is especially the case in non-unionised workplaces. In the UK we are currently a core participant
in the Leveson Inquiry and our General Secretary Michelle Stanistreet has made the point that in
News International, for example, whistleblowing by journalists was impeded by a culture of bullying.
I have no evidence that the practices revealed by the Leveson inquiry are widespread in Ireland but
it is worth saying that Whistleblower protection would certainly aid any journalist concerned at
unethical or inappropriate behaviour in his or her workplace in this country. For the record NUJ is
denied the right to collective representation in a number of media organisations in this country.
In terms of the profession of journalism Head 8 of the general scheme is of particular relevance to
the NUJ and it is this section I wish to address.
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Head 8: Disclosure in Other Cases: The section is described in the explanatory note as dealing with
disclosure to the media. It means that disclosure must be done in good faith, which excludes
personal gain.
In addition, one of three alternative tests must be satisfied before protected status is granted to the
whistleblower’s disclosure:
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The whistleblower must have a reasonable expectation that s/he will be penalised or that the
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information will be concealed or the
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whistleblower must have followed a stepped disclosure procedure involving the employer, any
relevant regulatory body or the state.
We would like to see explicit reference to disclosure to the media in the Bill and would ask the
committee to consider how this can be done.
We are uncertain as to how valuable the right of protection for whistleblowers is to someone who
decided to go to the media. In general a whistleblower will go to a journalist and speak to him or her
in confidence. They may do so anonymously. It is for the journalist to interrogate the source and to
ensure that the story stands up. A journalist faced with a story should always check the veracity of
the source and must use the guiding principles of journalism before publishing a story based on the
leak.
Establishing the veracity of a source means confirming the motivation of any source, including a
whistleblower.
The NUJ Code of Conduct informs the work of NUJ members.
Clause (7) of the Code states that a journalist should "protect the identity of sources who supply
information in confidence and any material gathered in the course of her/his work.
Principle 6 of the Press Council Code of Practice for Newspapers and Periodicals states: Journalists
shall protect confidential sources of information.
The issue of disclosure only arises therefore when a whistleblower subsequently reveals to his or her
employer that she was the source of information published by the media or where, as a result of an
investigation the employer determines that an individual whistleblower was the source of published
material.
A journalist faced with a request to co-operation with such an investigation is required to refuse, on
the basis that the journalist is obliged to protect a confidential source.
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That right has been tested in law.
I would draw the attention of the committee to the definitive ruling of the European Court of Human
Rights: Goodwin v the United Kingdom (1996) when the NUJ supported the right of a member, Bill
Goodwin, to protect confidential source of commercially sensitive information.
That case concerned commercial information of a highly confidential and secret character: the
corporate plan for the refinancing of an important company. It was claimed that disclosure would
threaten the business and the livelihood of its employees. The information was communicated to Mr
Goodwin by a person who, though known to the journalist, wished to remain anonymous. The
company managed to secure an interim injunction restraining publication: it had learned of the
disclosure of the information because the journalist had contacted it to make some enquiries. The
fact of this injunction was material to the decision of the court. The English courts, all the way to the
House of Lords, made orders requiring the journalist to disclose his source. He refused. The House of
Lords fined him £5000 for contempt of court. In its judgment on the journalist’s case, the European
court had this to say about journalistic sources:
“Protection of journalistic sources is one of the basic conditions for press freedom, as is reflected in
the laws and the professional codes of conduct in a number of Contracting States and is affirmed in
several international instruments on journalistic freedoms. Without such protection, sources may be
deterred from assisting the press in informing the public on matters of public interest. As a result the
vital public watchdog role of the press may be undermined and the ability of the press to provide
accurate and reliable information may be adversely affected. Having regard to the importance of the
protection of journalistic sources for press freedom in a democratic society and the potentially
chilling effect an order of source disclosure has on the exercise of that freedom, such a measure
cannot be compatible with Article 10 of the Convention unless it is justified by an overriding
requirement in the public interest.”
In his judgment in the Supreme Court appeal by Kennedy and Keena v the Mahon Tribunal Mr Justice
Fennelly drew upon the Goodwin case in upholding the appeal by NUJ members Geraldine Kennedy
and Colm Keena against a High Court order in relation to information supplied by an anonymous
source, quoting in full the above extract.
We believe that there is a strong case for legislation governing the right of journalists to protect
confidential sources of information in the public interest, consistent with the provisions of the
European Convention on Human Right and reflecting the view of the Supreme Court and the
European Court of Human Rights.
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This may require separate legislation, since the General Scheme of Protected Disclosure in the Public
Interest Bill makes no provision for anonymity and indeed specifically excluded protection to those
who make disclosure on the basis of anonymity.
We note that this Bill forms part of the Programme for Government. We welcome the Bill and also
look forward to the repeal of the Freedom of Information (Amendment) Act.
The extension of the Act to include agencies such as NAMA and the restoration of the original Act
would significantly enhance our system of public administration.
Freedom of information represents an ethos of government , an ethos which we hope will be
reflected in the Protected Disclosure in the Public Interest Bill, 2012.
Séamus Dooley
Irish Secretary
NUJ
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