RTÉ's Dave Fanning initiates defamation case after his photo appeared in article about sexual misconduct trial of different broadcaster

RTÉ broadcaster Dave Fanning has initiated defamation proceedings over a website article concerning the trial of a different broadcaster over alleged sexual misconduct.

The article, published on the MSN (Microsoft News) website and/or news aggregator on October 11th, 2023, featured a photograph of Mr Fanning under the headline ‘Prominent Irish broadcaster faces trial over alleged sexual misconduct’.

The accused person in the trial, who cannot be identified because he was acquitted of the charges, was not Mr Fanning.

The proceedings came before the High Court’s Mr Justice Cian Ferriter on Monday via an application by Garrett Cooney BL, instructed by Meagher Solicitors LLP, for leave to serve the proceedings outside the jurisdiction on BNN, a Hong Kong entity alleged to have supplied the article to MSN; and on US-based Microsoft Corporation.

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The judge was told the proceedings are also against Microsoft Operations Ireland Ltd (MOIL), and the law firm Mason Hayes Curran had accepted service of the proceedings on its behalf.

In an affidavit, Paul Meagher, solicitor for Mr Fanning, said his client claims the article defamed him in that it was understood to mean, inter alia, that he engaged in sexual acts with minors and was a criminal. As a result of the article, Mr Fanning claims he was held up to public ridicule, scorn and contempt and suffered grave damage to his reputation.

Mr Justice Ferriter remarked the article appeared around the time of a “reasonably well-publicised trial” and asked was there any acceptance the content was “completely wrong”.

Mr Cooney said the publication marked “the new frontier of libel law”. His side suspected artificial intelligence (AI) was being used to aggregate news articles and it seemed there was a “flaw” in this publication.

If that was what happened, it was “quite a shocking state of affairs” and “extremely serious”, the judge said. He was not expressing any view on the matter, he stressed.

After Mr Meagher contacted Microsoft, the article was removed on October 12th, 2023, he said.

Mr Cooney outlined various efforts by Mr Meagher to identify BNN.

In an affidavit, Mr Meagher said BNN is an online news network, founded by Gurbaksh Chahal, and its website advertised its offices at an address in Tsim Sha Tsui, Hong Kong SAR.

BNN is also stated to have its registered offices at that address on the website Development Aid, which further described it as an NGO, not a company, thereby potentially explaining the absence of a return for it on the Companies Register of Hong Kong, he said.

Mr Meagher said he had on November 21st last emailed BNN and the journalist whose name was attached to the article at an email address for BNN provided by Microsoft. He requested certain information including its registered offices but had not to date received a response. He believed the offices are located at the Hong Kong address referred to.

Mr Cooney said it appeared the journalist in question has left BNN and is working for another entity.

Mr Justice Ferriter said he was happy all reasonable efforts had been made to identify the address of BNN and would grant liberty to serve the proceedings on BNN at the Hong Kong address.

The judge said the intended defamation proceedings arose from an article published on the MSN feed under a headline ‘Prominent Irish broadcaster faces trial over alleged sexual misconduct’ which was accompanied by a colour photograph of Dave Fanning.

Mr Fanning is a well-known broadcaster, the judge said. Mr Fanning’s case that he had “absolutely nothing” to do with the trial “cannot be gainsaid” it seems, the judge said, “certainly from what is before me”.

BNN is a Hong Kong entity associated with the MSN publication and appears to have some responsibility for the publication, he said.

The judge adjourned the separate application to serve Microsoft Corporation in the US, saying he had some concerns about that given the correspondence from Mason Hayes Curran on behalf of MOIL. He was told MOIL has set out a purported defence relying on being an intermediary service provider within the meaning of the e-commerce directive.

Mr Cooney said they had written to MHC asking who has control over MSN and referring to Mr Fanning’s distress about the publication. The response was MOIL is the responsible entity for articles accessible by users in Ireland and Microsoft Corporation is not relevant to this complaint, he said.

Mr Cooney said Mr Fanning has a reputation outside Ireland as well and his side needs clarification for the legal entity responsible for any publication of the article outside Ireland. To fully adjudicate the issues, the court needed to understand who writes and selects the content on the MSN website. His side would say publication on any website is always accessible internationally.

The judge, noting there is no prima facie evidence that Microsoft Corporation has separately published the article anywhere or is legally responsible for what is published from Ireland, adjourned the application to serve the proceedings on the US company for one week to allow the plaintiff consider that particular matter before ruling on it.

Mr Cooney said his side may need to have Microsoft Corporation involved to challenge the supposed defence of an intermediary via the e-commerce directive.

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