O'Brien ruling is not death knell for press freedom
The facts, then, and how they emerge, are crucial to the result of any trial.The “honest opinion” defence put forward by the Mail is often termed a “new defence” because it is set out in the relatively recent Defamation Act, 2009, but for the most part it is a restatement of the common law defence of “fair comment”, available in courts for more than 150 years.
The essence of the defence is that published opinion may be defended in a libel suit if it was anchored in fact, concerned a matter of public interest and was honestly held by the publisher or author.
The factual foundation is vital; this corner of the law seeks to protect freedom of expression for opinions based on fact, but it is not designed to protect opinions about people based on misapprehensions or fallacies.
The facts relied on must appear in the publication or be sufficiently well known that one could reasonably expect the readers to be familiar with them; in theory, where the readers know the facts, they can make an informed judgment about the opinion being presented to them. Where the alleged facts are not proven (or substantially proven) by the defendants, the defence fails.
In the O’Brien case, the Mail was unable to support the claim that the billionaire “keeps popping up” on broadcasts from Haiti (in fact he was on air only a couple of times, and relatively briefly) or the contention that he was bending Charlie Bird’s ear about his own plans or achievements. As mentioned, the evidence to support the contention that he sought publicity for his charity work seemed fairly thin. In addition, while the article said Moriarty was “about to report”, O’Brien stressed that anyone familiar with the tribunal could have told Drury that publication was not imminent.
The jury surprised some observers by finding that the article was not “on a matter of public interest”. The words and actions of a public figure, broadcasting a political appeal on the national news, on an occasion of international significance, would seem quintessentially a public interest matter of the sort traditionally envisaged by defamation law. It has been suggested that the jury may have tailored their answers to match the overall verdict they had reached. Also, they may have intended to say that publication of this particular opinion was not in the public interest. The answer is nonetheless something of a conundrum.
It would be wrong to conclude that the case is a setback generally for journalistic freedoms. The strong trend in Irish law in recent years has been towards expanding those freedoms, most notably in Mahon v Keena (2010) in the Supreme Court, which endorsed journalistic privilege.
More recently Judge Hogan in the High Court even suggested that any blogger might enjoy journalistic privilege, where writing on public interest matters.
The fourth estate need not fold its tent just yet.
John Maher BL is a practising barrister and author of The Law of Defamation (Round Hall, 2011)