The publisher of the Irish Mail on Sunday has been found to have breached consumer protection laws by publishing 26,000 Sunday Tribune lookalike editions.
Associated Newspapers (Ireland) (ANI), owners of the Irish Mail on Sunday, was prosecuted by the National Consumer Agency (NCA) at Dublin District Court for breaching consumer protection legislation. The newspaper group has pleaded not guilty to six charges.
The watch-dog had brought the case against ANI after complaints by readers who bought the "special edition" Irish Mail on Sunday, on February 6th last thinking they had purchased the Sunday Tribune, days after it went into receivership.
In his verdict today Judge Conal Gibbons said he had found four of the charges against ANI proven.
He noted the evidence from witnesses who bought the edition thinking it was the Sunday Tribune and who had felt "duped" and "cheated". He also noted evidence from retailers and shop employees, who had thought they had been supplied with editions of the Sunday Tribune.
He accepted submissions from counsel for ANI, Mr Neil Steen, that his client was a good corporate citizen. However, Judge Gibbons rejected claims that it was a “trivial” matter and he commended the work of NCA in their handling of the case.
Judge Gibbons said he believed that the Irish Mail on Sunday did not deliberately try to deceive consumers by publishing the misleading special edition.
And he accepted that ANI's managing director Paul Henderson and Irish Mail on Sunday editor Sebastian Hamilton, whom he described as men "with ink in their veins", did not intend for newspaper readers to be deceived.
He said he understood that the newspaper industry faced problems from declining sales and readers of a shut down paper do not necessarily migrate to another title.
However, he described the decision to run the special edition as an "over zealous" marketing exercise to attract former Sunday Tribune readers.
Judge Gibbons said he was applying the Probation Offender’s Act sparing ANI a criminal conviction, on the basis that they pay the NCA’s legal costs and expenses, and donated €15,000 to charity within four weeks.
He specified that given the nature of the case, the charity should be nominated by the National Union of Journalists, with the view that the money would go to a benevolent fund for journalists.
A receiver was appointed to the loss-making Sunday Tribune on February 1st and two days later a decision was made not to bring out a final edition on February 6th.
The Irish Mail on Sunday then distributed 26,000 "special editions" to shops on the east coast of which about 9,000 issues were sold.
They featured a "wraparound" cover with a heading saying "a special edition designed for readers of the Sunday Tribune".
The defunct paper's editor Noirin Hegarty has told the court that the edition in question looked like the Sunday Tribune and had a similar masthead, fonts and colours.
ANI's lawyers submitted that the case was brought following "a media fire-storm"; the defence also claimed that the edition featured fonts used only by the Irish Mail on Sunday and referred to its columnists on the front page.
Earlier, Sebastian Hamilton, editor of the Irish Mail on Sunday, had defended the decision to run the edition - saying it was a marketing exercise to gain new readers and not an attempt to mislead people.
"It is flashing them something they are familiar with, so they will say 'What the hell is this?' pick it up, 'it is the Mail on Sunday, Jesus', and either put it back or say 'You know what, for €1 give it a try'," Mr Hamilton had told the court at an earlier stage.
Five consumers had given evidence saying they had been misled into buying the edition.
Jonathan Kilfeather SC, for the NCA had submitted that the defendant company had intended in a “carefully executed plan” to deceive the consumer.
A packing note sent to shops referred to the edition as: "Sunday Tribune alternative issue". Shops were also asked to stock the look-alike edition on shelf space previously reserved for the Sunday Tribune.