By Michael Smith
In 2013, I wrote in Village that Denis O’Brien, Ireland’s most powerful media owner was exercising an extraordinarily chilling effect on journalism and journalists 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 17 journalists have received legal letters from Denis O’Brien in the previous ten years.
In 2013 O’Brien had obtained an injunction stopping the Sunday Times publishing confidential details of his business relationship with cash-short Paddy McKillen. In 2014 he was to be awarded €150,000 by the High Court after the Irish Mail questioned his philanthropy. The late and distinguished Paul Drury had written that O’Brien “kept popping up” on RTÉ news to promote his image “set to be tarnished by a pending report of the Moriarty tribunal”. 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 Corporation (IBRC) which he claimed breached his privacy rights and would cause him incalculable commercial damage. RTÉ had opposed the injunction on grounds including the right to freedom of expression and public interest. It also argued the courts should be slow to interfere with legitimate journalistic 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 1996 and 1999, totalling approximately £500,000, and supported a loan of Stg£420,000 given to Lowry in 1999. The Moriarty tribunal found that the payments from O’Brien were “demonstrably referable to the acts and conduct of Mr Lowry”, acts which benefited Esat Digifone. In 2013, O’Brien informed Village that “I take very serious 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 corruption in any aspect relating to me when it came to publishing its report”. However, I concluded in the 2013 article 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 philanthropy, for he is a generous man. Or print leaked documents about his banking affairs, since no-one expects their 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 Desmond who was hammered in the Glackin report and implicated in the unsavoury funding of former Taoiseach Charles Haughey in the Moriarty Tribunal, 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 dossier” in which a conservative Department of Enterprise “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. 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 responsibility 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 apparent conspiracy not the headline names.
RTÉ, of course, has form: in 2013 it largely ignored the Lowry Tapes, in which Lowry admitted to having paid €250,000 additional to what he told the Moriarty Tribunal, to land agent Kevin Phelan, leaving it to the privately-owned TV3 to broadcast them. Elaine Byrne who originally broke the Tapes story reckons RTÉ in total devoted only “20 minutes, incidental” coverage to the tapes before she gave them to the Vincent Browne show.
Defending RTé David Nally, Managing 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 questions as to where his company got the covered-up €250,000 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, application, knowledge or backbone, the message has gone out to Ireland’s broadcasters and Ireland’s newspapers: “don’t say anything negative about ‘Denis” or you’ll be sued and lose. Don’t even mention 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 constitutional 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 15.12): “All official reports and publications of the Oireachtas or of either House thereof and utterances 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. Furthermore. If anything a TD says is improper it should be stopped by the Ceann Comhairle, if necessary by clearing the House and getting agreement by democratic 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 parliament. You really can’t.
It was in this spirit after hearing that Broadsheet.ie had posted the proceedings, 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 magazine when it was published [which we duly do on page 78]. This was not brave for there was no real chance that any judge would interfere with the Constitutionally-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 29.9%, 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 challenged in court. Instead they folded in panic, some of them even before they 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 subject 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 abhorrence in a democracy. In Ireland the Constitution prevails over any judgment, 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 privilege we publish on page 41) 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 station’s playback channel.
Other lawyers did not fare so well. Michael McDowell in a typically celebrated 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 15.12 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 William 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 statement: “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 15.12 of the Constitution 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 asserting 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 interest. 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 vindicate our right to report on these matters, and the public’s right to know them”.
RTÉ’s Philip Boucher-Hayes gratuitously 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 journalists, 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 2 June and the media packed into Court 1 in the Four Courts to hear RTé’s application for clarification 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 utterances 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 privileged. 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 Constitution was clear and no judge could ever cut across it. It was how he had implicitly damned the Times’ stance. Newstalk reported both that the privilege extended only to fair reporting and that O’Brien was not seeking to stop Murphy’s comments being broadcast. The Mail led with the story that O’Brien’s counsel had climbed down by withdrawing the case that the privilege did not extend to reportage as opposed to Murphy’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 climbdown – 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 broadcast 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 understand that. What was exposed was the continuing crisis of Irish journalism: of its ownership, of its mettle, of its intelligence. •
