Hugh O’flaherty on the Denis O’brien case

BACK in the 1960s, the ‘Evening Press' published an opinion piece by its music critic, John O'Donovan, who was a very learned man and an expert on and admirer of George Bernard Shaw. He was commenting on the performance of Patrick Begley as compere of some show or other, and the sting in the article was that O'Donovan wrote that Begley was “precious”. There was more than that in the piece, which I do not recollect at this remove. Also, there was this background: Begley had been removed from his post as a continuity announcer with the then Radio Eireann because his accent was thought to be too “plummy” and not consonant with the station's culture. So an assertion that he was “precious” was likely to be wounding.

Begley sued for libel. Prior to the enactment of the Defamation Act 2009, which introduced the defence of “honest opinion”, there was a similar defence known as “fair comment”. While the comment did not have to be fair in the sense of being unbiased, it did have to be on an opinion that was not based on untrue facts.

As in last week's ‘Daily Mail’ case involving Denis O'Brien, the defence failed and damages were awarded against Irish Press Limited.

At the time, Aengus O Dalaigh, the brother of chief justice and future president Cearbhall, was librarian at the ‘Press'. He had been there since its foundation, and was dedicated to it. So, when I approached him after the case I thought he would be devastated that his beloved ‘Press’ had been condemned to pay large damages. On the contrary, he was composed and said: “Well, if someone is libelled – if he is deprived of his good name – he deserves to be compensated in damages.”

What Aengus was recognising was that the right of a person to his good name must trump the right the media has of freedom of expression.

The ‘Daily Mail’ article written by Paul Drury and published on January 22, 2010, shortly after the terrible earthquake in Haiti, was headlined: “Moriarty is about to report, no wonder O'Brien is acting the saint in Haiti.”

Mr O'Brien pleaded that the words meant and were understood to mean that his involvement in the Haitian relief effort was a hypocritical act primarily motivated by self-interest and was an ingenious feint.

The jury agreed that was what the words meant, and while it accepted that the words in the article did represent the honest opinion of the defendants, it did not find this opinion was based on allegations of fact proved to be true. It found that the opinion expressed was not a matter of public interest. The article as a whole was somewhat mocking and caustic about Mr O'Brien's rescue work. In the course

Opnions can be biased, contrary –

whatever; but the facts on which they rest can not be untrue

Hugh O’Flaherty is a former judge of the Supreme Court article, Mr Drury had described himself as a cynic. A cynic by definition is one who believes that human conduct is motivated wholly by self-interest.

Mr Drury was entitled to air his opinions as much as he cared. They could be biased, contrary – whatever; but the facts on which they rested could not be untrue. As long as the facts on which the opinion was based were true, the defence succeeded; otherwise, defamation was established.

IN THIS case, the headline, which was not the work of Mr Drury, was a straightforward assertion of fact on which the jury was entitled to rely. There were other assertions in the article found not to be true. In evidence, Mr Drury made a distinction between his role as columnist and that of a reporter when it came to checking the facts. But the old adage must apply to both occupations: facts are sacred while comment is free.

How is fact distinguished from comment? A neat example is afforded in a 1952 case. Mi-chael Foot, later leader of Britain's Labour Party, in attacking an article in Lord Beaverbrook's ‘Evening Standard’ referred to it as “being lower that Kemsley”. (Viscount Kemsley owned a number of English titles at the time.) Kemsley sued for libel. The judges held that it was not an attack on Kemsley himself, but that it was the newspapers controlled by Kemsley that were the subject matter of the comment, which was that Kemsley newspapers were nearly as low as those of Lord Beaverbrook.

As one of the judges put it: “It is not . . . a statement of fact that a newspaper is low: it is a comment. It may be a statement of fact to say that a man is fraudulent, for there is legal sanction for fraud, but there is no legal sanction for publishing low newspapers.”

While it is understandable that this case was too serious a matter for resolution by the Press Ombudsman or Press Council, there must be a better way of resolving a defamation case than to have it last three years and occupy more than a week at hearing where the costs will far outstrip the amount involved.

A good aspect of the case is that now the judge can give guidance on the subject of damages: the damages in this case were within reasonable bounds.