Thursday 22 March 2018

Judgement reserved on Denis O’Brien case

Denis O'Brien
Denis O'Brien

Tim Healy

A JUDGE is to give his decision next week on a High Court injunction application brought by businessman Denis O'Brien to stop an RTÉ broadcast which he says will breach his privacy rights.

Mr Justice Donald Binchy said he would give his judgment more likely at the end rather than the beginning of next week.

He heard submissions from lawyers for Mr O'Brien, Irish Bank Resolution Corporation and RTÉ, over three days as to whether RTÉ should be stopped from broadcasting a report about what the the businessman says are his private and confidential affairs with IBRC.  

He says such a broadcast would breach his constitutional and European convention right to privacy.

IBRC, which has a separate but related application before the court, supported his case. 

RTÉ opposed it 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.

It said Mr O'Brien's suggestion the report could have been run without naming him would result in a boring and sterile story.

Mr O'Brien's side argued the court should grant the injunction, pending full hearing of all the issues, because damages would not be an adequate remedy should he win the main action.  The balance of convenience also favoured granting the injunction.

IBRC said RTÉ had put forward no public interest justification for breaching confidentiality or for breaching its (IBRC's) right to claim legal privilege over certain matters related to this case.

Andrew Fitzpatrick BL, for IBRC, said RTÉ had admitted the real reason for this broadcast was it did not want the story to be boring.  There was no law which allowed breach of privacy on the basis that something might be boring, he said.

Earlier, in reply to submissions made on Thursday by RTÉ, Mr O'Brien's counsel Michael Cush said it was not for RTÉ to decide the issue of confidentiality of information should be part of its editorial role.

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

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

If RTÉ was correct in this, then that would be an answer to every attempt by the media to disclose private information, counsel said.

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 publish, 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 RTÉ 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.

RTÉ 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 RTÉ 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 were  disclosed, Mr Cush said.

Mr O'Brien had said "if the pretext" for RTÉ 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.  

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