
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