Liam Collins: Media gets card marked on Saint Valentine's Day
Telecoms tycoon awarded €150,000 damages after jury finds newspaper article was not based on fact
IT was getting close to six o'clock and Ms Justice Elizabeth Dunne was concerned that some of the jury might need to make 'arrangements' as the libel action taken by telecoms tycoon Denis O'Brien against Associated Newspapers was about to enter its final phase.
One of the jurors put up his hand.
"I have dinner at 8.30," said the only romantic in Court 16 of the Four Courts in Dublin, as Valentine's night got into full swing in the outside world.
"Well, you might be late," said the judge as the assembled lawyers, witnesses, media and interested observers chortled for the first time in days.
As it happens, he wasn't late for his very important date, the jury returning shortly after 8.10pm to award Mr O'Brien €150,000 in damages, after agreeing unanimously that he had been libelled in an article written in the Irish Daily Mail by the journalist Paul Drury, containing a headline written by Paul Field which went: 'Moriarty's about to report. No wonder O'Brien acting the saint in stricken Haiti.'
The summing up by Ms Justice Dunne and the jury's deliberation was the last act in a long, sometimes riveting, sometimes tedious, drama, in which the conflicting rights of commentators on public affairs and the people they write about were thrashed out in court for the first time in the context of the Defamation Act, 2009.
"There has been a lot of rhetoric and discussion about the right to express opinions which are honestly held, and also the right to one's good name," the judge told the jury.
"You don't have to decide whether one right is more important than the other. You have to ask yourselves if the article defamed Mr O'Brien and if it did, does the defence of honest opinion stand up."
The judge then summarised the facts of the case.
• It was widely believed that the Moriarty tribunal was about to report and Mr O'Brien had indicated in newspaper interviews that 60 of the findings would be critical of him.
• Mr O'Brien ran a public relations campaign to attack the lawyers in the tribunal and vowed to fight them 'street by street'.
• Mr O'Brien arrived in Haiti days after the catastrophic earthquake and the following day 'hooked up' with Charlie Bird of RTE for a number of interviews.
• The length of time given to Mr O'Brien during the news was unusual and he was given a platform to discuss his own plans.
• That Mr O'Brien was a 'tax exile' from Ireland but paid tax here and in any jurisdiction where he earned income.
• He was publicly involved in a number of charities that attracted publicity, which was contrasted with Chuck Feeney (of Atlantic Philanthropies) who shuns it.
"These are the allegations of fact, these are the building blocks on which Paul Drury built his article," said the judge.
She then went on to outline the disputed facts in the article
• Denis O'Brien 'hooked up' with Charlie Bird and followed him around and that was the main thing he was doing in Haiti.
• That Denis O'Brien kept 'popping up' with Mr Bird in the RTE coverage, but there was no research about how much airtime he was given, or how much time they spent together.
• The number of photo opportunities in which Mr O'Brien appeared was disputed.
• Mr O'Brien made use of an appalling human tragedy, the Haitian earthquake, for his own purposes.
The jury also had to consider that there was no offer of an apology or a retraction. Mr O'Brien had been offered a right of reply, which he had rejected, and also rejected what his barrister, Paul O'Higgins, described as a "slap on the wrist" from a Press Council his client said "has no teeth".
The judge told the jury that in the most extreme personal accident cases awards were capped at €450,000 (excluding aftercare costs) and this figure should be borne in mind when considering the damages to a person's good name.
The jury of six men and six women was then asked to consider eight questions.
The most relevant was No 1: "Did the words complained of mean that the plaintiff's involvement in the Haitian relief effort was a hypocritical act primarily motivated by self-interest and was an ingenious feint?"
The jury agreed that it was.
They were then asked: "Was the opinion based on allegations of fact proved to be true and referred to in the words complained of containing that opinion or which were known or might reasonably be expected to have been known by readers of the article."
They said 'No' to that and 'No' to the question: "Was that opinion on a matter of public interest?"
What became clear was that Mr O'Brien and Digicel flew Mr Bird to Haiti, they organised for a car and a driver (security man) to usher him around the earthquake zone and they provided him with a satellite phone and mattresses for the duration of his stay.
When Mr O'Brien flew into Haiti on the Sunday from Kenya he conducted two interviews with Mr Bird, one of about 80 seconds in duration in the centre of Port au Prince, which was interrupted by shooting, and another at the airport. He then conducted a third interview outside the Digicel offices before Mr Bird was flown back to Florida.
Wearing an Amnesty International pin on his jacket, Mr O'Brien spent all six days of the trial listening attentively to the evidence.
During that time he heard Mr Drury trenchantly defend his right to hold the opinions he did, or as Mr O'Higgins put it, "make a succession of speeches".
Mr O'Higgins: "Do you think it is a serious matter to say of someone that they would regard the death of 300,000 people as an opportunity to arrive on the scene to distract attention from events in Ireland?"
Mr Drury: "What I was saying was that having done this (arrived on the scene) Mr O'Brien decided to use his presence in Haiti to portray himself in a different light to the very, very unsavoury way he was going to be treated in Ireland."
Mr Drury also claimed that in a series of interviews given to Sunday newspapers after the Moriarty tribunal had circulated its preliminary findings in 2009, Mr O'Brien had put them "into the public domain".
"I am suggesting to you that it is a gross lie to say the material was leaked by Mr O'Brien, because other people had put it in the public domain and he had to say something," answered Mr O'Higgins.
Mr O'Higgins pointed out in his summing up that at no point had Mr Drury phoned Digicel, or as suggested by Mr O'Brien, any lawyer in the Law Library to find out if Moriarty was imminent.
Addressing Mr O'Brien's decision not to avail of a right of reply, Mr O'Higgins said it "would it be brilliant copy for the Mail" but his client did not want to do that, or go to the Press Council.
Counsel for Associated Newspapers Oisin Quinn told the jury: "If the article was to be treated as fact it would be a devastating blow to freedom of expression."
But while the jury accepted the article was the "honest opinion" of Mr Drury, they did not believe that it was based on facts that were substantially true, or that his opinion was in the public interest.
As Mr O'Brien accepted congratulations, handshakes and a kiss from one of a coterie of female supporters, Mr Drury brushed past to get his coat, but both men kept their gazes averted from each other.
Mr O'Brien was quite emotional and following a phone call he spoke briefly in the corridor outside the courtroom.
"I feel very pleased with the result and vindicated in taking the case against the Daily Mail," he said. When asked about the contrast between the €150,000 damages awarded to him and the €750,000 he was awarded in a libel action against the Daily Mirror in 2006, Mr O'Brien answered: "The jury made its own decision. We are living in different times in this country."
He concluded a short interview, saying: "People have freedom of expression but also the right to a good name and that is what this case was all about."
Outside the Four Courts Michael Kealey, the solicitor who conducted the case on behalf of Associated Newspapers Ireland read out a statement saying: "We are extremely disappointed with the outcome, even though the jury decided that Paul Drury expressed his views honestly. This is a sad day for all those who seek to voice strong opinions in our democracy."
But as he made his way to a romantic St Valentine's night assignation, one juror, at least, had good reason to smile.