The High Court ruled that two draft emails written by Irish Daily Star crime correspondent Michael O’Toole were covered by journalistic privilege and did not have to be produced for inspection in a defamation action brought by solicitor Gerald Kean against Independent Star Ltd.
The emails were sent to the newspaper’s news desk on 10 March 2016, the day before it published an article about Kean. The court found they were earlier drafts of that article. Some material in the first draft was removed from the second, and further material was deleted before publication.
Kean alleges that the published article conveyed that police had searched his offices because they believed he had dealings with a criminal drug gang. Independent Star denies that the article carried the alleged meaning. Its defence pleads fair and reasonable publication on a matter of public importance and truth under section 16 of the Defamation Act 2009.
The dispute over the emails arose from a discovery order made in February 2017. The newspaper claimed journalistic privilege over them, arguing that a source might be identified from their contents, including by comparing what was added or removed. In March 2018, Kean sought to strike out the defence for failure to comply with a further order requiring the newspaper to state the basis for its privilege claim, and also asked the court to inspect the emails and rule on the claim.
O’Toole swore an affidavit confirming that the source was not a serving or former member of An Garda Síochána, nor a civilian working with or for the police. He also said releasing the emails would create a real risk of identifying a confidential source. The parties agreed that the judge would read the emails and decide whether the privilege claim was justified.
Mr Justice Barr said the journalist had removed material from the drafts to protect his source or sources. Although the judge might not be able to identify them from the deleted passages, others with more detailed knowledge could do so. Having examined the passages, the judge was satisfied that making them available through discovery would create a significant risk of source identification.
The ruling was limited to the two emails: the court held that they were privileged and need not be produced for inspection. The judgment does not state the outcome of Kean’s separate request to strike out the defence.