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18June 2015
I
N , I wrote in Village that
Denis O’Brien, Ireland’s most
powerful media owner was exer-
cising an extraordinarily chilling
effect on journalism and journal-
ists after grossly negative findings
against him in the Moriarty Tribunal. I
detailed his litigious “promiscuity”:
how a large number of Ireland’s best-
known journalists including Eamon
Dunphy, Sam Smyth, Elaine Byrne as
well as Transparency International had
been threatened by Denis O’Brien and
were not keen to comment on his affairs
after that. Anne Harris, then editor of
the Sunday Independent, claimed that
journalists have received legal letters
from Denis O’Brien in the previous ten
years.
In O’Brien had obtained an
injunction stopping the Sunday Times
publishing confidential details of his
business relationship with cash-short
Paddy McKillen. In he was to be
awarded €, by the High Court
after the Irish Mail questioned his phi-
lanthropy. The late and distinguished
Paul Drury had written that O’Brien
“kept popping up” on RTÉ news to pro-
mote his image “set to be tarnished by a
pending report of the Moriarty tribu-
nal”. It was, Drury wrote, an “ingenious
feint”. Unfortunately for the Mail, this
view of the facts did not hold up.
In May this year O’Brien successfully
obtained an injunction stopping RTÉ
from broadcasting a report relating to
his private and confidential banking
affairs with Irish Bank Resolution Cor-
poration (IBRC) which he claimed
breached his privacy rights and would
cause him incalculable commercial
damage. RTÉ had opposed the injunc-
tion on grounds including the right to
freedom of expression and public inter-
est. It also argued the courts should be
slow to interfere with legitimate jour-
nalistic judgment. Binchy J in the High
Court resolved the matter – reasonably
it seems to me – on the basis the “court
must take account of the fact that very
little, if any, connection has at this stage
been established between the public
interest in alleged failure of corporate
governance at IBRC and Mr O’Brien’s
personal dealings with IBRC”.
It seems to me that Mr O’Brien takes
good legal cases and threatens others
that are not so good. This does not
mean he will win every case anyone is
brave enough to defend against him.
For example, the most notable thing
about O’Brien, apart from the fact he is
Ireland’s richest man, is that he made
two payments to then Minister Lowry,
in and , totalling approxi-
mately £,, and supported a loan
of Stg£, given to Lowry in
. The Moriarty tribunal found that
the payments from O’Brien were
“demonstrably referable to the acts and
conduct of Mr Lowry”, acts which ben-
efited Esat Digifone. In , O’Brien
informed Village that “I take very seri-
ous objection to the use of the word
‘corruption’ in the context of my
involvement in the licence process. This
Moriarty Tribunal (very deliberately)
made no reference whatsoever of cor-
ruption in any aspect relating to me
when it came to publishing its report”.
However, I concluded in the arti-
cle that it was “not clear that the
payments to Lowry were not indeed
susceptible to a finding that they were
towards the corruption end of the
impropriety continuum”.
So...you can say Denis O’Brien
behaved “towards the corruption end of
the impropriety continuum”. What you
cannot do is say he is feigning philan-
thropy, for he is a generous man. Or
print leaked documents about his bank-
ing affairs, since no-one expects their
NEWS Denis O’Brien
Up their own ileum
Ireland’s media are spineless and legally clueless about Denis O’Brien, as well as Dermot
Desmond and the Ansbacher dossier. By Michael Smith
June 2015 19
private banking affairs to appear in the
media – unless presumably there is
some impropriety or scandal, which had
not been shown in the case O’Brien won
in May.
The media tend to see it otherwise.
But the media have form in cowardice.
For years they have also largely abjured
reportage on the affairs of Dermot Des-
mond who was hammered in the
Glackin report and implicated in the
unsavoury funding of former Taoiseach
Charles Haughey in the Moriarty Tribu-
nal, but who had ratcheted up a large
number of defamation successes over
the years. And all the media failed to
report the thrust of the “Ansbacher dos-
sier” in which a conservative
Department of Enterprise “authorised
officer” documented an apparent con-
spiracy to keep the identities of a large
number of powerful people associated
with unethical or illegal offshore
accounts, out of the light of investiga-
tion or the glare of publicity. That issue
was obfuscated on the issue of the
naming in the Dáil last year by Mary
Lou McDonald of six mostly well-known
alleged depositors in Ansbacher
accounts. Village uniquely published the
dossier but did not name these people.
All other media failed in their responsi-
bility to report and explicate the serious
allegations of conspiracy, and certainly
did not print the dossier. To this day
they still substitute for publication and
investigation a denigration of Mary Lou
McDonald’s availing of parliamentary
privilege. Ms McDonald was right to use
the privilege but it would have been
better if she had focused on the appar-
ent conspiracy not the headline names.
RTÉ, of course, has form: in it
largely ignored the Lowry Tapes, in
which Lowry admitted to having paid
€, additional to what he told the
Moriarty Tribunal, to land agent Kevin
Phelan, leaving it to the privately-owned
TV to broadcast them. Elaine Byrne
who originally broke the Tapes story
reckons RTÉ in total devoted only “
minutes, incidental” coverage to the
tapes before she gave them to the Vin-
cent Browne show.
Defending RTÉ David Nally, Manag-
ing Editor, RTÉ Current Affairs,
contended that the Lowry Tape “got the
coverage it deserved” and “does not
advance the story significantly beyond
the findings of the Moriarty Tribunal”,
even though the tape seems to show that
Lowry perjured himself and raises ques-
tions as to where his company got the
covered-up €, to pay Kevin
Phelan.
And of course RTÉ caved in and paid
out surprisingly readily, when members
of the Iona Institute threatened it with
defamation actions after Panti Bliss
called members “homophobes” on
Brendan O’Connor’s ‘Saturday Night
Show’.
Taking these messages (and these and
other payouts) for received wisdom,
noting the abjectness of many of their
eminent colleagues and underpinned by
no great reserves of imagination, appli-
cation, knowledge or backbone, the
message has gone out to Ireland’s broad-
casters and Ireland’s newspapers: “don’t
say anything negative about ‘Denis” or
you’ll be sued and lose. Don’t even men-
tion the Dail-sanctioned Moriarty
Tribunal unless you give similar weight
to the disputatious views of Ireland’s
richest man”.
Onto this lethal background then
came the decision of one of Ireland’s
soberest TDs, Independent Catherine
Murphy, to read details of Denis
O’Brien’s banking arrangements into
the Dáil record. Now this cast the
matter into a different orbit. A member
with a democratic mandate was taking
the matter way beyond the constitu-
tional realm that applied to a leaked
document received by RTÉ (as in the
first Binchy J case).
For this matter is constitutionally
protected. The constitution is clear
(Article .): “All official reports
and publications of the Oireachtas or
of either House thereof and utter-
ances made in either House wherever
published shall be privileged”.
Democracy requires that the public
hears what its elected representatives
have to say, for without a record, how
can their debates be relevant. Further-
more. If anything a TD says is improper
it should be stopped by the Ceann Com-
hairle, if necessary by clearing the
House and getting agreement by demo-
cratic vote for the record to be struck
out. If it is false it should be stopped or if
this is not practical there should be
aggressive sanctions agreed by the
House including barring the member
from the House for a suitable period. But
in a democracy you can’t silence parlia-
ment. You really can’t.
It was in this spirit after hearing that
Broadsheet.ie had posted the proceed-
ings, which in substance implied that
O’Brien got favourable treatment from
state-owned IBRC for his banking – and
was facing legal threats, that Village
posted them on its own website and
undertook to publish them in the maga-
zine when it was published [which we
duly do on page ]. This was not brave
for there was no real chance that any
judge would interfere with the Constitu-
tionally-prescribed right. The organs of
state tend to avoid precipitating foolish
constitutional crises.
Shockingly I heard that RTÉ, the Irish
Times and the Journal.ie had removed
the material from their websites or were
not broadcasting it. The Independent
group, in which O’Brien holds .%,
was of course never going to publish.
It seems to me that in a democracy
these media should have maintained
their rights, and seen if they were chal-
lenged in court. Instead they folded in
panic, some of them even before they
And all the
media failed
to report the
thrust of the
“Ansbacher
dossier”
in which a
conservative
Department
of Trade
“authorised
officer”
documented
an apparent
conspiracy
to keep the
identities of a
large number
of powerful
people
associated
with unethical
or illegal
offshore
accounts, out
of the light of
investigation
or the glare of
publicity
“
20June 2015
were threatened, and after the event
tried to portray it as a strategic retreat.
They say they were obliged to go back to
court to see if Binchy J considered his
judgment covered the matter. But any
defamation injunction is implicitly sub-
ject to the privilege of parliament to
print it and so was his judgment. He did
not need to make it explicit. Free speech
is not contingent. The notion that a
judge could “confirm” it is an abhor-
rence in a democracy. In Ireland the
Constitution prevails over any judg-
ment, especially an ambiguous one.
Lawyers know this and many brilliantly
said so: Conor O’Mahony of NUI Cork,
Eoin O’Dell of Trinity, and Eoin
O’Malley of DCU (whose view on privi-
lege we publish on page ) most clearly.
Indeed shockingly O’Mahony’s opinion
piece on Today FM which suggested that
reports of Murphy’s comments were
privileged, never figured on that sta-
tion’s playback channel.
Other lawyers did not fare so well.
Michael McDowell in a typically cele-
brated article full of rhetoric about the
importance of the matter, in fact fudged
the issue, noting: “We are in dangerous
territory where the alleged privacy
rights of the powerful call into question
… seem to cast doubt on the efficacy of
Article . of our Constitution”.
The better and clearer view was that it
did not cast any doubt on the efficacy of
the Constitution.
Far worse was the legal advice that
must have been proffered to the Irish
Times, RTÉ, the Sunday Business Post
and the Journal.ie. And indeed by Wil-
liam Fry to Denis O’Brien. On the other
hand the Sunday Times published with
little enough hoo-ha.
Particular journalists let themselves
down. The editor of the Irish Times, no
doubt under pressure, released a state-
ment: “Our legal advice, following Ms
Murphy’s Dáil statement, was that
reporting it in full would involve a
breach of the injunction and that it was
not clear that the absolute privilege
referred to in Article . of the Con-
stitution would afford us privilege in
such a way as to allow us disregard the
court order. In those circumstances we
amended our initial online report and
reported the issue in the fullest possible
way, having regard to the court order.
Shortly afterwards, solicitors for Denis
O’Brien wrote to the Irish Times assert-
ing that reporting of Ms Murphy’s
statements would result in an
application to court to enforce the
injunction. We remain committed to the
reporting of matters in the public inter-
est. With that in mind, we will be
applying to the High Court on Tuesday
morning (separately to RTÉ) to seek
confirmation that the statements can be
reported. We believe that to be the
responsible and appropriate way to vin-
dicate our right to report on these
matters, and the public’s right to know
them”.
RTÉ’s Philip Boucher-Hayes gratui-
tously tweeted that the constitutional
privilege was “qualified”, for the media.
One wonders where this amateurish
view came from and why Boucher-
Hayes, RTÉ’s Investigations
Correspondent and one of its best jour-
nalists, felt compelled to take the stance
of the enemies of the free media – using
a stupid and unfounded view of the law
to ground it. Tom Lyons loyally and
robustly defended his Sunday Business
Post – at times implying its coverage
matched the Sunday Times’ (where he
once worked), when it had in fact
eschewed any mention of the substance
of Catherine Murphy’s allegations.
Some politicians called it better,
though Enda Kenny, perhaps a fan of
O’Brien, was quiet. Fianna Fáil’s Thomas
Byrne clearly and elegantly advised the
media to publish unfettered, privileged
by the Constitution. Micheál Martin
destroyed O’Brien’s media advisor on
RTÉ’s ‘This Week’ programme.
Day dawned on June and the media
packed into Court in the Four Courts
to hear RTÉ’s application for clarifica-
tion of the judgment of Binchy J. For ex
post facto endorsement of a right of free
speech in a democracy.
Following a few submissions from the
parties Binchy J announced he could
help: “it was not intended, nor could it
ever have been never intended that his
order would apply to reporting of utter-
ances in Dáil”.
Broadsheet.ie, the Sunday Times,
Oireachtas.ie and even Village had been
vindicated. RTE, the Irish Times, the
Sunday Business Post and of course all
of O’Brien’s media empire had been
exposed. Whether or not they realised
it.
Even after the clear judgment many
continued to get it wrong. The normally
excellent Seamus Dooley on behalf of a
robust National Union of Journalists
seemed to imply that only fair reportage
of proceedings in the Dáil were privi-
leged. This made it sound as if
wrong-headed contributions to the Dáil
could not be reported. This is not so.
The privilege extends to all reporting.
The Irish Times’ front page report
omitted the bit about how “it could
never have been intended”. But this was
how the judge signalled that the Consti-
tution was clear and no judge could ever
cut across it. It was how he had implic-
itly damned the Times’ stance. Newstalk
reported both that the privilege
extended only to fair reporting and that
O’Brien was not seeking to stop Mur-
phy’s comments being broadcast. The
Mail led with the story that O’Brien’s
counsel had climbed down by withdraw-
ing the case that the privilege did not
extend to reportage as opposed to Mur-
phy’s right to say what she did. In fact it
seemed to me from what was said in
court that his counsel, Michael Cush
made it clear there was no such climb-
down – which would for example have
implied that it was a mistake to write to
Broadsheet.ie.
Gratifyingly, if belatedly, RTÉ’s
Deputy Director-General, Kevin
Bakhurst, who came via the BBC, saw
the full majesty of the judgment and his
employers’ mistake. He declared the
judgment recognised the right to broad-
cast parliamentary proceedings,
unqualified. Everyone went home.
The constitutional crisis was always
chimerical because no judge would close
down reportage of Dáil proceedings,
even if most of the media do not under-
stand that. What was exposed was the
continuing crisis of Irish journalism: of
its ownership, of its mettle, of its intelli-
gence. •
The
constitutional
crisis was
always
chimerical
because no
judge would
close down
discussion
of Dáil
proceedings,
even if the
media do not
understand
that. What was
exposed was
the continuing
crisis of Irish
journalism
“
NEWS Denis O’Brien
Mr Justice Donald Binchy: vindicated the
Constitution, of course
