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Tuesday 22 May 2018

'Large-scale payouts threaten the existence of journalism'

This week's remarkably low award in a High Court defamation suit left all parties celebrating. John Meagher asks whether the case signals a major change in what are seen by media as Ireland's draconian defamation laws

Possibly facing a hefty legal bill: Nicky Kehoe at the Four Courts. Photo: Collins Courts
Possibly facing a hefty legal bill: Nicky Kehoe at the Four Courts. Photo: Collins Courts
John Meagher

John Meagher

There was a decidedly strange mood outside the Four Courts on Monday afternoon. The contrasting sentiments of elation and dejection were nowhere to be seen as both sides appeared to claim victory.

Sinn Féin political manager Nicky Kehoe was talking happily about having his good name restored, while RTÉ was suggesting it was "a very positive" outcome, even though the State broadcaster had lost the case.

Kehoe had sued RTÉ for defamation over a discussion on Claire Byrne's radio show in October 2015 in which a guest, Joe Costello - then a Labour TD - had suggested that a member of the IRA army council controlled Sinn Féin councillors in Dublin City Council.

Another guest, Sinn Féin's Eoin Ó Broin - then a councillor, now a TD - immediately jumped in to say that Costello was referring to Nicky Kehoe and his allegations were groundless. He went on to robustly defend his party colleague.

In the High Court, Kehoe said he had turned his back on paramilitarism after being released from prison 26 years before and said that RTÉ should have shut down the debate as soon as his name was mentioned. He claimed his reputation had been destroyed in "one swipe".

Kehoe won the defamation action and was awarded damages of €3,500 - a remarkably low amount by Irish standards. The jury found that the defamation justified damages of €10,000 but that Costello - who had not been sued - was liable for 65pc for what had occurred.

RTÉ Radio 1 head Tom McGuire noted the €3,500 was the lowest High Court defamation award in modern times. He called it was "a very positive" outcome and said it vindicated RTÉ's decision to fight the case.

"It is really important that a public service broadcaster is able to host live vigorous political debate for the sake of our democracy," he said.

Like many in his profession, Eoin O'Dell, law professor at Trinity College Dublin, was intrigued by the outcome of the case. "The level of damages is very low relative to where damages have been in the past," he says, "and I wonder whether that's got to do with the reforms related to damages introduced by the Defamation Act 2009.

"Under that Act, the parties are entitled to address the jury in the question of damages and the judge has to direct the jury on the question of damages." It is, O'Dell says, "a significant change from the situation that went before".

"When juries weren't directed on damages we got very high awards like, say, the award for Monica Leech that the European Court for Human Rights held was too high and which your newspaper among others have campaigned against on the basis that Irish damages awards are disproportionately high compared to other jurisdictions."

In what is routinely held up by the media as an example of Ireland's draconian defamation laws, the Waterford businesswoman won €1.87m damages in 2009 after successfully suing Independent News and Media (INM) for a series of articles published in the then Evening Herald in 2005. The award was subsequently reduced to €1.25m by the Supreme Court.

Clear message

Last June, the European Court of Human Rights upheld a complaint from INM that the money awarded to Leech amounted to a violation of freedom of expression. The court ruled that the award amounted to a violation of Article 10 of the European Convention on Human Rights, which provides a right to freedom of expression and information.

While the ruling did not have any impact on the size of the award given to Monica Leech, it sent out a clear message on the need for Irish courts to rein in libel awards.

But Eoin O'Dell believes that while the Kehoe ruling offers a positive to media organisations in terms of damages, there are negatives. "RTÉ relied on the defence of a fair and reasonable publication - or [in other words] a matter of public interest - and the jury held that that defence was not made out on the fact.

"I have been arguing that that defence is cast in too narrow an ambit, that its terms are very hard to satisfy in that there are just too many hoops to jump through. I think this case demonstrates just how difficult it is for the terms of that defence to be satisfied."

Seamus Dooley, Irish secretary of the National Union of Journalists, says the ruling is a cause for concern. "I think it has very serious implications for media organisations in general - and specifically for broadcasters. While the damages are quite small, the implications of the case are very serious. It raises issues of fundamental importance in relation to live broadcasting and the liability of a broadcaster even when the individual presenter or the producer has done his or her best to ameliorate a defamation which is outside the control of the broadcaster."

Dooley says the current defamation regime is relatively young and "one would have hoped that RTÉ's defence that it had done its best in the circumstances would have been enough to convince the jury". But that did not happen in this instance.

"When the bill was introduced," he says, "it was hoped that the realities of how the media operates would be reflected in the operation of the Act - that is not happening. Errors creep in. Media is like any line of work - there is a capacity for error. It is how a media organisation deals with the error that should be reflected in the law so, for instance, there's no doubt that in this case the presenter made an honest attempt to alleviate the damage that had been done. In the same way, in print journalism, if a mistake creeps in, it is the manner in which a newspaper addresses the mistake which should be taken into account. And the new Act hasn't got that balance right."

Because of the potentially high damages to be awarded and the exorbitant costs involved in High Court actions, media organisations often settle defamation cases out of court.

"The very fact that so many cases are settled and never come to court means that the public doesn't always have a full appreciation of the implications of defamation law," Dooley says. "And the forgotten dimension is that media companies are often not the masters of their own destiny as they may be guided by their legal team - and also by insurance companies."

Dooley says Ireland's defamation regime should be of interest to all of us, especially those who value the role that best-practice journalism plays in everyday life. "There is a danger of what the Americans call 'the Chill Effect', that the threat of defamation can inhibit journalism and can inhibit robust journalism," he says. "Large-scale damages [payouts] threaten the very existence of journalism as we know it."

Meanwhile, Nicky Kehoe is facing what's likely to be a hefty bill for costs. Outside the court, he said the case had been about his good name and not about money. "A jury of my peers has vindicated my name and I'm really, really happy with that because my name means a lot to me," he told reporters. "I am a good person and I worked really hard for that. That's the way I look at that."

Eoin O'Dell says: "I wonder then why he didn't seek one of the alternative remedies that are available under the 2009 Act - it's called a Declaratory Order - where, if all you want is a declaration that you have been defamed, there is a quick procedure in the Circuit Court to get that order.

"If it really was just about vindication, why didn't he seek a Declaratory Order? That would have reduced the complexity of the case and it would have reduced the costs associated with it."

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