Judges are divided as Court of Appeal upholds contempt finding against INM

THE Court of Appeal has by a split decision upheld a finding of contempt of court against Independent News & Media (INM).

Judges at the court clashed on the issue, with Mr Justice Gerard Hogan finding that articles published by the Irish Independent in 2014 were protected by the constitutional right to free speech.

However, in a majority judgment, Mr Justice John Edwards found the articles did amount to contempt of court as they contained prejudicial commentary about an individual who was awaiting trial for conspiracy to defraud.

In contrast, Mr Justice Hogan said free speech was the lifeblood of democracy and a finding of contempt would have “a chilling effect” on all discussion regarding certain events.

Mr Justice Edwards was supported in his views by the third member of the court, Ms Justice Mary Finlay Geoghegan.

More precise details of the articles cannot currently be published for legal reasons.

The court said it was issuing redacted judgments to avoid the creation of potential prejudice to a number of pending criminal trials.

INM and a subsidiary company, Internet Interactions Ltd, had appealed a finding of contempt made by Judge Iseult O’Malley in the High Court in April 2015, which resulted in fines totalling €100,000 being imposed. A stay was put on those fines pending the outcome of the appeal.

The Court of Appeal may hear submissions on the size of the fines next year if the matter is not appealed further to the Supreme Court.

In his dissenting ruling, Mr Justice Hogan said the Irish Independent articles made no reference to any pending criminal trials and did not make any direct suggestion of criminal conduct. He also said they revealed no information directly concerned with the offences the individual was charged with.

“If the Irish Independent’s publication amounted to contempt, the same might also be said with as much justification of almost any publication which was critical of certain other persons or which discussed certain events forming the background to this trial,” Mr Justice Hogan said.

He went on to say that a further consideration, to his mind, was that if the publication amounted to contempt it would have a “chilling effect” on all discussion regarding these events. “It would be hard to say where the possible boundaries of contempt lay and newspapers and other media might well refrain from discussing these issues,” he said.

The judge noted that the accused’s trial was scheduled to start 18 months after the articles appeared.

He said the articles were part of a long line of publications which were highly critical of certain individuals and he could not say they presented any real risk to the fairness and integrity of the trial that was pending.

He added that the courts would be failing in their duty to uphold the substance of the right to free speech in Article 40.6.1 of the Constitution if they did not protect publications of this kind. “While the right to a fair trial must naturally be protected, we cannot live in some sort of antiseptic and sterile society where robust comment on public affairs is treated like some sort of hostile germ against which the most elaborate of anti-bacterial precautions must be taken,” he said.

However, in the majority ruling, Mr Justice Edwards said he was satisfied the articles were in contempt of court.

During the appeal, INM pointed out that other publications covering the same ground remained on sale throughout the prosecution and that the Director of Public Prosecutions clearly felt these did not constitute a contempt.

Mr Justice Edwards said date of publication was a key factor on this issue. “The other publications referred to were all published before the individual concerned was charged,” he said.

He said it would have been “of questionable utility” to bring contempt proceedings against those publishers or to seek to restrain further sales as there was already a significant number of the publications in circulation.

He said the situation in this case was different and the fact the Director of Public Prosecutions did not act on other publications was irrelevant when considering whether or not INM’s publication constituted a contempt of court.

Mr Justice Edwards said he did not accept that the contempt findings had a potential chilling effect on discussion of matters of undoubted public importance.

The judge also said the story could have been adequately reported without naming the individual concerned and without accompanying prejudicial commentary.

‘‘ In a majority judgment, Mr Justice John Edwards found the articles did amount to contempt of court