Keena v Ireland and the Protection of Journalistic Sources

In two decades of jurisprudence since Goodwin v UK on the protection of journalistic sources, the European Court of Human Rights has usually been called upon to consider two issues, namely: court orders compelling journalists to reveal a source or a source’s document; or police seizure of journalistic material to identify a source or a source’s document. However, Keena and Kennedy v Ireland presented two novel issues for the Court: first, what is the consequence of a journalist not only refusing to surrender a document from a confidential source, but going one step further, and destroying the document, before a court has an opportunity to consider the issue. Second, may domestic courts impose the full costs of legal proceedings on journalists where they destroy a document in such circumstances. The Court held, by a majority, that not only was destroying the document not a ‘legitimate’ exercise of the right to protection of journalistic source, but imposing costs was ‘a matter for the discretion of the domestic courts’. This article offers a critical discussion of Keena and Kennedy, and argues that the Court’s reasoning is open to question on both points.