In what feels like a year of many firsts for media law in Northern Ireland, we review five key highlights from 2024.
- SLAPPs
The year got off to a strong start, as Master Bell delivered a damning judgment against MLA Gerry Kelly on 8 January 2024. Having issued proceedings against two journalists over claims that he “shot a prison warder [John Henry Adams] in the head” in the Maze Prison escape of 1983, Malachi O’Doherty made a successful strikeout application under Order 18, Rule 19 of Northern Ireland’s High Court rules. Dismissing Mr Kelly’s claim, the Court noted:
“…it is not overtly clear whether it was Mr Kelly or Mr Storey who fired the shot that hit Mr Adams in the head. What is clear is that one of the escapees decided that it was necessary to use force to safeguard the escape and that, having entered into the common design, Mr Kelly would be as legally liable for the shooting in civil proceedings as if he had pulled the trigger himself. Initiating defamation proceedings in these circumstances is, without doubt, an abuse of process.” (Master Bell, at paragraph 66)
Master Bell went on to address why he considered Kelly’s claim “an attempt to silence two bothersome journalists with the threat of legal costs.” This, we understand, is the UK’s first judgment striking out a claim as an abuse of process because it amounted to a SLAPP. In so doing, the Master noted that Kelly had not taken action in respect of the widespread reporting over the years that Mr Kelly shot Mr Adams. This, taken alongside Kelly’s decision not to sue the two media organisations which carried the journalists’ words, and an earlier book in which he admitted threatening to shoot a prison officer, meant the claim had been brought for an improper collateral purpose.
- Suspect Anonymity
On 31 May 2024, Humphreys J struck down legislation granting “blanket” anonymity to those suspected of sexual offences. The Justice (Sexual Offences and Trafficking Victims) Act (NI) 2022 had prevented reports identifying suspects prior to charge, throughout their lifetime and for 25 years following their death. In its first decision quashing part of an Act of the Assembly, the NI Court held:
“Under the provisions of the Act, media organisations have no access to the court to test whether the interference with the article 10 right in any given situation is disproportionate and therefore unlawful. There is no public interest defence, nor is any media organisation able to apply to the court, during the suspect’s lifetime, for modification or revocation of the prohibition. There is no role for the court, or any other effective remedy, to enable the article 10 rights of the media to be protected.” (Humphreys J, at paragraph 124)
In finding that the Act imposed a disproportionate interference with the Applicants’ Article 10 rights, the Court highlighted the vital role public interest journalism plays in a democratic society and the important role of journalists in facilitating and prompting police investigations. In the face of creeping privacy constraints post-ZXC, media organisations have welcomed the decision as a victory for press freedom.
A&L Goodbody acted on behalf of The Times, The Sun, BBC, Associated Newspapers and The Guardian, instructing Jude Bunting KC who made the lead submissions in support of the challenge. A copy of the Court’s judgment can be accessed here.
- Victim Anonymity
Following what has been described as the UK’s largest catfishing investigation, Alexander McCartney pleaded guilty in May last year to 185 offences, including the manslaughter of 12-year-old Cimarron Thomas, who lived in West Virginia in the United States. McCartney had used fake online profiles to contact and blackmail his victims, aged between 10 and 16, across three continents. Following police investigations “of the most harrowing nature”, McCartney was arrested and bailed on 4 February 2016 before subsequently reoffending. In March 2024, O’Hara J lifted restrictions preventing reports on McCartney’s guilty pleas.
Ahead of McCartney’s sentencing on 24 October 2024, A&L Goodbody acted for the BBC in the first decision lifting victim anonymity provisions under Section 8 of the Justice (Sexual Offences and Trafficking Victims) Act (NI) 2022. Granting the application to name Cimarron Thomas in an upcoming docuseries, Teen Predator / Online Killer, the Judge stated:
“The BBC set out how it believes that there is an immense public service value of highlighting the scale of the local and international efforts in pursuit of justice against McCartney and in helping children and young people more widely better protect themselves from predators in a digital world. I agree with those points.”
McCartney has since been sentenced to life imprisonment. Teen Predator / Online Killer, which is available on BBC iPlayer, follows the international investigation into McCartney and shares the perspectives of the police, victims and families warning of the dangers faced by children online.
- Christopher Hughes v Associated Newspapers
In a judgment delivered on 22 November 2024, the High Court dismissed proceedings which had been issued by Christopher Hughes against the Daily Mail. Hughes’ claim related to the bodies of 39 people from Vietnam found in a container that had travelled from Zebrugge to Essex. A major international police investigation followed into offences of the manslaughter and human trafficking of the victims for which Christopher Hughes and his brother Ronan were initially named as suspects. Ronan Hughes subsequently pleaded guilty to 39 offences of dangerous unlawful act manslaughter, with no charges or further action being taken against Christopher Hughes.
In a press conference held by the Essex Police at the time, officers had said “finding Ronan and Christopher Hughes [was] crucial” to their investigations and urged the brothers to come forward and assist Essex Police. The press conference was the subject of widespread media reporting from multiple organisations. Christopher Hughes subsequently issued proceedings against the Daily Mail for defamation, misuse of private information and breach of his Article 8 right to privacy, albeit only the defamation claim was pursued in the Statement of Claim. Hughes also filed claims against 18 other outlets, all relating to reporting of the police investigation.
Arguing that he was “improperly implicated” by the Daily Mail’s article titled “Manhunt for Essex lorry tragedy ‘killers’”, lawyers for Hughes alleged that the reporting was sensationalist, irresponsible and reckless as to his reputation. Allowing the Daily Mail’s application, Master Bell concluded that the proceedings enjoyed no prospect of success:
“…[W]as the article in the MailOnline a piece of investigative journalism where the author was acting as a bloodhound sniffing out bits of the story from here and there from published material and unpublished material, or was the author acting as a watchdog barking to wake the public up to the story already out there? I have to conclude that, when taken as a whole, the tenor of the article is that of the barking watchdog and not that of the sniffing bloodhound.” (Master Bell, at paragraph 53).
- Police surveillance of journalists
On 17 December 2024, the Investigatory Powers Tribunal (IPT) found that the Police Service of Northern Ireland (PSNI) and Met Police unlawfully surveilled Belfast journalists Barry McCaffrey and Trevor Birney. The IPT is an independent tribunal with UK-wide jurisdiction and hears claims relating to the alleged use of covert investigative techniques by a public authority. The claim followed a judicial review brought by McCaffrey and Birney and subsequent settlement, in which the PSNI reportedly agreed to pay £875,000 arising out their unlawful arrest and seizure of journalistic material by police in 2018. This related to No Stone Unturned, a 2017 documentary exploring alleged police collusion in the 1994 Loughinisland massacre, where gunmen opened fire during an Ireland-Italy World Cup fixture, killing six and wounding five others.
In its judgment, the IPT awarded £4,000 each to McCaffrey and Birney for unlawful communications authorisations between 2012 and 2018. This marks the first award of damages against a police force by the IPT, who also ordered that the unlawful authorisations be quashed. Responding to the judgment, PSNI Chief Constable John Boutcher committed to ensuring that the PSNI “use[s] the powers available to us in a way that is lawful, proportionate and accountable.”
With the McCaffrey-Birney case concluded, claims by the BBC and journalist Vincent Kearney will now proceed. Also on the horizon this year is Angus McCollough KC’s independent review into concerns relating to the surveillance of journalists, lawyers, NGOs and regulators. The review was commissioned by the PSNI Chief Constable in June 2024, although its terms of reference make clear that it will not extend to matters within the scope of ongoing proceedings before the IPT.
Ciaran O’Shiel is a partner and Niamh Flanagan is a solicitor in the media and technology litigation team in A&L Goodbody’s Belfast office. With thanks to Martyn Doherty for his assistance in the preparation of this article.
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