On 14 February 2013, a Irish High Court jury awarded defamation damages of €150,000 to billionaire businessman Denis O’Brien (pictured) in a claim against the Irish Daily Mail. The jury rejected the defence of honest opinion, finding that the article was not based on fact and was not in the public interest.
The claim arose out of an article published on 22 June 2010 and written by Paul Drury, managing editor of Associated Newspapers Ireland from 2008 until 2011 and now a member of the Irish Press Council. The article concerned a visit to Haiti shortly after the devastating earthquake and was headlined: “Moriarty is about to report, no wonder Denis O’Brien is acting the saint in stricken Haiti.”
The reference to “Moriarty” was to the “Moriarty Tribunal” established in 1997 into the financial affairs of politicians Charles Haughey and Michael Lowry which finally reported in March 2011. The Tribunal dealt with the relationship between Mr O’Brien and Mr Lowry.
Mr O’Brien claimed the article meant his involvement in the Haiti relief effort was a hypocritical act and an attempt to deflect attention from the Moriarty Tribunal report which contained findings adverse to him but which he strongly disputes.
Associated Newspapers said that the article was an expression of opinion honestly held on a matter of public interest and relied on the new Irish statutory defence of “honest opinion”.
In his closing speech to the jury Oisín Quinn SC for the Daily Mail said that the right to express opinion was “vital to society”. He highlighted “10 facts” contained in the article that were “right and true” and on which Mr Drury based his opinion. He said the article was “sarcastic, cynical, with some attempt at humour”, but was obviously an opinion piece.
Paul O’Higgins SC, for Mr O’Brien, said no comment was useful if it couldn’t be trusted. He also said while Mr O’Brien could afford to take the defamation case, most of the people hurt and damaged by newspapers could not. He also suggested that when someone goes to the Press Council with a complaint the newspapers would “laugh all the way to the bank”. He also claimed “no research of any kind” had been done before the article was published or since.
After three hours of deliberation the jury found Mr O’Brien had been defamed by the article. The jury agreed the article was Mr Drury’s honest opinion but they decided it was not an opinion based on fact and was not in the public interest. Compensatory damages of €150,000 were awarded – but no award of aggravated damages was made.
A number of interesting points arise out of this case. First, it appears that this was the first High Court jury trial under the Irish Defamation Act 2009 – which came into force on 1 January 2010. It also appears to be the first trial at which the new defence of “honest opinion” (under section 20 of the Act) has been considered.
Second, there are interesting differences between the Irish version of the defence of “honest opinion” and the proposed new English defence of the same name (in what is now section 5 of the Defamation Bill). In Ireland, unlike the proposed defence in England, retains a requirement of “public interest” (for which, see Gavin Phillipson’s post on “Free Comment and Private Lives“). It is possible that the new defence of “honest opinion” would have succeeded in England on the facts of this case – provided that there were some facts on the basis of which an honest person could have held the opinion that Mr O’Brien was a hypocrite.
Third, it is interesting to note that the author of the article complained of – and one of the individual defendants to the action – is a member of the Press Council of Ireland. It is difficult to see how, if it had been called on to do so, this body could have acted as an independent regulator in relation to the actions of one of its own members. This draws attention to the difficulties which can arise when working journalists are members of a regulatory body.
We are grateful to Dr Eoin O’Dell of cearta.ie for drawing this case to our attention.
Interesting case and comparision with the defence had it been used in England. It is also interesting that this was decided by a jury. Without knowing all the details of the case, on the face of it, the judgement does seem quite harsh to me.
I know this was in Ireland and I do not think a jury has been used in England for a libel case for a while. But there are a couple of points possibly worthy of discussion here in light of other recent events.
If the jury in the case of Chris Huhne’s ex wife was dismissed because they did not understand their role I wonder how a jury could possibly be expected to consider the complexities of libel law and an award. I always think back to another Irish case – when Mr Kinsella sued Kenmare Resources for libel – a company that he was director of. And of course the amazing and unbelievable award made by the jury which seemingly shocked even the judge.
It does make you wonder whether there is something seriously wrong with the legal system in Ireland – either with allowing a jury to decide cases, libel law itself or its interpretation by judges and jury.
http://www.dailymail.co.uk/news/article-1330503/Naked-sleepwalker-wins-Jury-grants-Donal-Kinsella-record-8-5m-payout.html
“But last night even the usually unflappable Judge Eamon de Valera appeared to be stunned when the foreman for the 11 jurors handed the written decision to him.
The vastly experienced judge read the note carefully, paused and asked: ‘Correct me if I’m mistaken… but you have awarded compensatory damages of €9million [£7.66million]and aggravated damages of €1million [£850,000] .’
The extra €1million (£850,000) was because the jurors felt that the cross examination of Mr Kinsella by the company’s lawyers was too aggressive. They believed barristers were trying too hard to discredit Mr Kinsella.
However, as onlookers exchanged gasps and looks of amazement, the only person in the courtroom who seemed to maintain a calm demeanour was the mining magnate himself.
Afterwards a still calm Mr Kinsella asked the Irish Daily Mail: ‘Are you expected to jump up and dance around the place”?
Finally, some time ago I spoke to a shareholder who held shares in a London listed Irish mining company (similar to the one in the article) who was threatened with libel law for comments made about directors on a financial forum. Among the comments complained of was one referring to the CEO as ‘Napoleon’. Anyway, when the shareholder correctly pointed out that the English High Court would throw any case out, he was threatened with being sued under Irish Libel law or criminal harassment law in Ireland. He was told in no uncertain terms that he had better apologise because ‘anything goes in the Irish Courts’ and he would undoubtably be ruined. I would really be interested in any observations which might help me change my perception that the Irish model is completely flawed and barking mad.