Saturday 10 December 2016

Confidentiality of information not RTE's decision in Denis O'Brien case, court hears

Tim Healy

Published 15/05/2015 | 12:56

Denis O'Brien
Denis O'Brien

IT was not for RTE to decide the issue of confidentiality of information should be part of its editorial role, counsel for businessman Denis O'Brien told the High Court today.

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That was a matter for the courts as they are there to protect people's rights, Michael Cush SC said.

Mr Cush was responding to arguments made Thursday by David Holland SC, for RTE, that the journalistic and editorial role should not be carried out by the courts.

If that was so, then it would be an answer to every attempt by the media to disclose private information, counsel said.

It was also wrong of RTE to say that Mr O'Brien had to disclose private information he held with one bank when he sought to deal with another new bank.   This was "simply incorrect"  because Mr O'Brien, and anyone else, can choose to decide what they disclose when dealing with a new bank.

Mr Cush was replying to Mr Holland's submissions on behalf of RTE in opposition to Mr O'Brien's, and IBRC's, application for an injunction preventing broadcast of a report which will allegedly disclose confidential information in breach of the businessman's right to privacy.

Mr Cush also disputed RTE's suggestion the O'Brien case is no different from a 2013 High Court bid by Belfast developer Paddy McKillen to prevent publication by a newspaper of loans he (McKillen) had with IBRC   The court permitted publication of certain matters related to Mr McKillen.

Mr Cush said while the McKillen and O'Brien cases shared common features, the main difference was that the McKillen loans were new loans with IBRC whereas O'Brien case involved extensions of existing facilities.

The court must not be involved in a "box ticking exercise" as every case is specific and must be looked at in terms of what is the focus of each story the media was seeking to pubish, counsel said.

There was a difference between the advancing of new loans and the extension of existing facilities, he said.

The McKillen story's focus was about him getting new loans and the RTE O'Brien story was about the governance of IBRC.  RTE had admitted that putting Mr O'Brien into the story was "the colour" and the "flesh on the bones" of the story about IBRC.

RTE argued the media must act as a watchdog on the rich and powerful, in accordance with freedom of expression rights under Article 10 of the European Convention, counsel said.

But not a single argument had been put forward to show that conferred a right to disclose confidential information.

It was also unfair for RTE to characterise as a threat Mr O'Brien's suggestion that he would have to review his arrangements with Irish banks if his private and confidential dealings with IBRC was  disclosed, Mr Cush said.

RTE had left out an important point in an affidavit sworn by Mr O'Brien in which this reference was made.  

It was that "if the pretext" for RTE disclosing the information was that Mr O'Brien was dealing with an Irish bank, then he would have to carry out a review.

"'If' is the important word", Mr Cush said.   It just so happened that in Ireland the State has a significant interest in financial institutions, counsel added.

The case continues.

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