Defamation judgment may be bad news for talk show guests

The radio debate that led to the defamation award to Sinn Féin's Nicky Kehoe was initiated by Labour Party politician Joe Costello, who was a guest on Saturday with Claire Byrne, RTÉ radio's politics-only live broadcast show.

A "curved ball" thrown by Costello led to a heated discussion involving Claire Byrne and Sinn Féin's Eoin Ó Broin, during which Kehoe was named and at the end of which, RTÉ argued, it had dealt with the issues that arose.

The jury, however, found that an impression had still been left that Kehoe was not a fit person to be involved in the democratic process.

The broadcaster sought to use the defence of fair and reasonable publication, a defence introduced in the 2009 Defamation Act, but it was not successful.

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The law aims to provide more protection for the holding of fair and reasonable debate that is in the public interest, but it has not been successfully deployed as yet in a court hearing.

RTÉ also relied on an aspect of the Civil Liability Act which is concerned with concurrent wrongdoing. This is where two parties are involved concurrently in a wrong and stipulates that each party should only be liable for their contribution to what occurred.

In a live broadcast this can mean where a person utters a libel and the broadcaster concurrently broadcasts it, live, then the broadcaster should only be responsible for its portion of what occurred.

The Kehoe case involved this issue being raised for what is believed to have been the first time in a defamation case.

Degrees of fault

Because Kehoe chose not to sue Costello, RTÉ could not be found to be liable for Costello’s portion of the damage that occurred. The jury was asked to assess in percentage terms the degrees of fault between RTÉ and Costello. It decided on a 35 per cent/65 per cent split, with the greater part of the blame lying with Costello.

I served my time and I came out changed. The reputation I have now is different from what I had, but I had to work hard to get that reputation

Overall damages awarded were the historically low amount for a High Court case of €10,000, so the broadcaster is only liable for €3,500. In High Court terms that is a very low amount.

The split in the Kehoe finding has no implications for Costello, but establishes an important precedent that has implications for live broadcasts in particular.

If a guest goes on a programme and defames someone, it is more likely now that the guest will be pursued by the person defamed. This is because if the person defamed doesn’t sue the guest, and successfully sues the broadcaster, he or she is likely to get only a proportion of the damages, and possibly even a very low proportion.

As a result guests on live programmes are more likely to be minded to be careful as to what they say lest they find themselves, alongside the broadcaster, waiting in a room in the Four Courts while a jury decides their fate.

The Kehoe case may also mean that journalists will be that bit more careful when dealing with Sinn Féin politicians who have an IRA past.

Kehoe was arrested in 1983 after a shoot-out with gardaí and a foiled attempt by him and his IRA colleagues to kidnap businessman Galen Weston. He was jailed in 1974 for possession of explosives.

I would not be proud

Asked by Cian Ferriter SC, for RTÉ, if he was proud of his activities in the IRA, the Sinn Féin political manager for Dublin responded: "No, I would not be proud."

That is an interesting response for a member of a political party that not only seeks to justify the IRA’s campaign of killing and destruction, but even celebrates it.

“Are you ashamed?” Ferriter asked.

“I would be, in a context,” Kehoe responded.

But Kehoe also said: “I served my time and I came out changed. The reputation I have now is different from what I had, but I had to work hard to get that reputation.”

It would appear the jury agreed with Kehoe that he had a good name that could be unfairly damaged. Hence the, albeit low, defamation award.

One way of interpreting the outcome is that just because someone was an IRA gunman in the past, it doesn’t mean it’s open season forever in terms of attacking their character. Journalists and media organisations take note.