O'Brien ruling is not death knell for press freedom
ANALYSIS:Pivotal moments from the libel case against the ‘Irish Daily Mail’ showed an ‘honest opinion’ defence was flawed
Some alarmed commentary has followed last Thursday’s victory for telecoms billionaire Denis O’Brien in his libel case against the Irish Daily Mail (Associated Newspapers). The fact that this was a first run-out for the defence of “honest opinion” in the Defamation Act, 2009, has prompted fears that the verdict means journalistic freedom of expression has been curtailed. It is suggested that somehow, somebody cooked up libel laws that have turned out to be good for tycoons and bad for journalism.
The facts do not quite support this view.
In 2010 the Irish Daily Mail claimed O’Brien was exploiting a devastating earthquake in Haiti for his own public relations purposes.
In an opinion article headed “Moriarty’s about to report; no wonder Denis O’Brien is acting the saint in stricken Haiti”, the journalist Paul Drury wrote that O’Brien “keeps popping up” on RTÉ broadcasts from Haiti and “filling Charlie Bird in on everything he is doing”. Drury claimed O’Brien did so to burnish a personal image set to be tarnished by a pending report of the Moriarty tribunal. It was, Drury wrote, an “ingenious feint”.
After a week-long trial, the jury found for O’Brien and awarded him damages of €150,000. The Mail says it is considering an appeal.
Before considering the legislation, it is worth remembering that every case is decided on its facts. Minor factual divergences between otherwise identical cases can lead to very different results. In a jury trial there is the added element of 12 jurors spending hours studying witnesses in the box, assessing their credibility by their words and their demeanour under questioning. Because of this direct experience of witnesses, legal systems that use juries place a premium on their views, and appeal courts generally are reluctant to interfere with jury findings on matters of fact.
The screenwriter William Goldman once noted that “moments” are what make a movie work. Every great film has memorable moments that capture the essence of the characters, and drive the plot forward. This is often true also of trials.
When Charlie Bird’s report from Haiti was played in court, the Denis O’Brien in an ordinary polo shirt on the screen looked very much like a man shocked by the devastation around him and determined to help. Interviewed among supply planes landing at the airport, he did not talk about himself, but called on the EU to send aid quickly, before hurrying away.
It was impossible in court not to contrast the urgency and drama of the broadcast, amid the chaos, looting, gunshots, bodies and ruin of Port-au-Prince, with the idea of a journalist back in an office in Dublin settling down to write that O’Brien was simply trying to distract people from the Moriarty report. The two scenes seemed worlds apart, as indeed the jury decided they were. Another movie moment occurred when O’Brien was alleged to have continually sought a high profile for his charitable work, and he denied it. Three photographs showing him at charity events were produced, but only one had been widely published. The second had appeared on some news website in the US, and the third apparently was not published anywhere. In a world where every family dog seems to have a page to himself on Google Images or Facebook, the Mail’s three snaps did not look like a treasure trove of evidence.
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)