'Mail' libel defeat was a bad day for public discourse

The Irish Daily Mail is not my favourite newspaper. I dislike the idea of British publishing companies slipping the adjective “Irish” in front of their masthead and undercutting our own indigenous titles. But I have an acquaintance with its columnist Paul Drury from my own newspaper days.

I also have a passing acquaintance with Denis O’Brien, who successfully sued the newspaper for libel last week, securing damages of €150,000 in the High Court. I met him once at a dinner when I was editor of The Irish Times and he was starting out in the telecommunications business. He struck me as a determined, fairly straightforward individual.

But holding no brief for either party, I believe it was a bad day for public discourse and for freedom of expression when the jury in the High Court upheld O’Brien’s suit for libel.

I would not have been wholly persuaded by Drury’s interpretation of O’Brien’s actions in Haiti before the release of the report of the Moriarty tribunal. And I do not believe that during my tenure as editor of The Irish Times I would have been happy with a journalist writing the piece that he did. But I will defend his right to express his opinion on the facts and his editor’s right to publish it.

Factual errors

It will be countered that the jury concluded there were factual errors in the article, thus depriving Drury of the defence that his honest opinion was based on facts. This is, of course, a matter for the jury to determine.

So too, is it for the jury to decide if the material published is concerned with the public interest. And here, I have to say that I find its conclusion bizarre. How can the issues raised in the Moriarty report not constitute questions of public interest? And as the man at the centre of its inquiries, how can the actions of O’Brien, in the run up to its publication, not be a legitimate area for inquiry?

I also find myself somewhat puzzled by the jury’s conclusion that Drury got his facts – as opposed to his interpretation – wrong. O’Brien went to Haiti. The Moriarty report was imminent. Charlie Bird was flown in by O’Brien’s organisation and interviewed him about his charitable projects.

It is not wise to interpret motivation. Journalists are no better at mind-reading than anybody else. Yet there are not a few who cheerfully hold themselves out as having a capacity to do so.

Drury opined that O’Brien had gone to Haiti and done his television appearances in order to show himself in a positive light just as Moriarty’s unfavourable findings were about to be released. That such coverage could only redound to O’Brien’s credit can hardly be in doubt.

Interpretation of motivation

Any such felicitous effect may have been the farthest thing from O’Brien’s mind as he put his money and his energies into the Haitian project. This was what the jury concluded. But was Drury’s interpretation so wholly unreasonable given the broader context of events? And even if he was mistaken, should he and his newspaper be penalised for expressing it? It seems that what was at issue here, in part at least, was the interpretation of O’Brien’s motivation rather than any dispute over the salient facts.

People will ask how could Paul Drury claim he knew Denis O’Brien’s thinking? He had not sought to have O’Brien’s side of the story. Or if he did, he discarded it. Thus he stumbled into the killing zone from which no journalist can emerge unscathed – where one purports to tell the reader what is going on inside somebody else’s head.

The Irish Daily Mail could have navigated its way safely through the danger zone with a little more care and still make the point it wanted to. It could have asked questions rather than making bald assertions. It could have raised issues without purporting to have clairvoyant powers.

The great Guardian editor CP Scott coined the aphorism about facts being sacred and comment being free. The problem is that sometimes the lines between the two become blurred. Scott realised that, so he added that while it is good to be frank, it is better to be fair. The Irish Daily Mail was certainly frank in this case. But was it fair to O’Brien? The jury obviously did not think so.

* Conor Brady was editor of The Irish Times from 1986 to 2002.