Tuesday 25 October 2016

Businessman Denis O'Brien can never be treated as a 'private citizen', RTE tells High Court

Published 13/05/2015 | 17:36

Denis O'Brien
Denis O'Brien

BUSINESSMAN Denis O'Brien can never be a private person because he is a "media baron" possessing the power wealth can buy, a barrister for RTE said in the High Court.

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David Holland SC rejected arguments Mr O'Brien is entitled to be treated the same as every other private citizen.

He was arguing RTE's case against the businessman's application for an injunction preventing the broadcast of a report detailing his personal and confidential banking affairs with Irish Bank Resolution Corporation (IBRC).

Mr O'Brien was not just a wealthy person "with the power that money can buy" but he was also Ireland's most powerful "media baron", counsel said.

Read more here: Publication of Denis O’Brien’s ‘personal banking affairs’ with IBRC would be damaging to businessman, court told  

While he was not saying Mr O'Brien had misused that power he cannot complain about the media performing one of its roles in monitoring the powerful. Mr O'Brien personally owns just under 30pc of Independent News and Media (INM) and 27 radio stations around Europe including two national Irish stations, Newstalk and 98FM.

"In short, he is a media baron and is Ireland's most powerful media baron".  

While he did not suggest Mr O'Brien "had used his barony" to interfere with editorial matters in Newstalk "or thrown his weight about in INM", he had that power. "Somebody with that power is not a private person and can never be a private person, he is a public figure," he told the court.

While the word "celebrity" would be a slightly awkward word to use in regard to Mr O'Brien, there was no great difference between him as a public figure and a celebrity, the court heard.

Read more here: O'Brien bid to stop RTÉ airing IBRC bank details  

Mr Holland was making submissions in reply to the case made on behalf of Mr O'Brien for an injunction over a proposed RTE report which he says will breach his constitutional and European Convention rights to privacy.

IBRC, which has a separate but related case against RTE, supports his application.

He also says there is no public interest in disclosing his details and that in principle, if it is allowed in this case, it would not be possible to say where it should stop.

Michael Cush SC, for Mr O'Brien, said the damage to his client if the broadcast went ahead was impossible to calculate.

Read more here: Businessman Denis O'Brien seeks limited reporting restriction against RTE in High Court  

Mr Cush referred to the evidence of independent banking expert Marcus Trench, who swore an affidavit for the O'Brien side in which he said Mr O'Brien's relationship with banking institutions, including the terms of credit extended to him, would likely be damaged. It would seriously undermine his bargaining position with those banks and erode mutual trust, Mr Trench said.

Mr Cush SC said in addition to saying publication was likely to damage Mr O'Brien, Mr Trench was saying it was impossible to calculate the damage which would be caused to his client.

Earlier, Mr Cush said it was perfectly legitimate for RTE to refer to Mr O'Brien's role in Irish life and the fact he is a wealthy and powerful individual. But the line had been crossed when it sought to identify the precise nature of his loans and associated matters.

Read more here: Denis O'Brien seeking High Court injunction against RTE in bid to prevent report being broadcast  

What most exercised Mr O'Brien was  that, while the disclosure of confidential information would commercially damage him in a way he will never be able to prove, there was also a matter of principle involved here.

"If Mr O'Brien lets this go what is next, where does it stop", counsel said. Once such disclosure starts, it becomes insidious.

Mr O'Brien is acutely aware the bringing of this injunction application has garnered more attention than the proposed broadcast would, he said.

Some people will always believe Mr O'Brien is trying to hide something but that was his dilemma and so be it.

The court has ruled there is a limited reporting restriction, pending determination of the injunction application,  on the content of court documents relating to Mr O'Brien's banking details.  It is permissible to report Mr O'Brien is a major debtor of IBRC and about the intervention of Deputy Catherine Murphy in the Dail that Mr O'Brien sought an extension of his loan facilities.

In an affidavit Mr O'Brien said this was "outrageous" prying into his private banking affairs in a report where the focus was not on him but on the governance of state-owned bank IBRC.

It was acknowledged the information in the RTE report was confidential  to him and there was no suggestion of wrong doing on anybody's part.

But it was an attempt to use that information to promote the RTE story. 

The case continues before Mr Justice Donald Binchy.

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