Kehoe case puts our lack of ‘innocent publication’ defence in spotlight
RTÉ showed guts and principle defending the defamation claim won earlier this week by Sinn Féin’s Dublin City councillor Nicky Kehoe. The claim arose from a remark made by Labour Party TD Joe Costello during the live broadcast of the ‘Saturday with Claire Byrne’ radio show in October 2015. RTÉ doesn’t use the ‘delay button’ used by so many broadcasters, believing that as a public service broadcaster it has an implicit pact with listeners and viewers to ensure that live discussion is, in fact, ‘live’.
Costello remarked that “a former chief of staff” of the IRA was controlling how Sinn Féin members on Dublin City Council voted. He didn’t refer to Kehoe by name. His remark was picked up on immediately by Sinn Féin TD Eoin Ó Broin, who was also in the studio. According to Clare Byrne, in her testimony to the trial, Ó Broin gave Joe Costello “both barrels” in his immediate defence of Kehoe. Costello eventually withdrew his allegation, acknowledging what was factually on the record – that Kehoe had in the past been an IRA member.
Costello wasn’t sued by Kehoe – Kehoe was intent on holding RTÉ 100pc liable for what happened. Kehoe maintained that Byrne, as presenter, should have shut down the discussion immediately, as soon as Costello made his initial remark. He argued her failure to do so caused the ensuing damage to his reputation.
A more practical example of robust and important debate on a clear matter of public interest would be hard to imagine. Costello, in a live broadcast, alleged that an influential Sinn Féin member was subverting the democratic functioning of Dublin City Council.
A prominent Sinn Féin TD leapt to his fellow party member’s defence, naming him and repudiating comprehensively the defamatory allegations that had been made against him.
In her evidence at the trial Byrne, with her trademark lucidity, principle and intelligence, defended the judgment call she made to allow the conversation to continue on air. She maintained that as Eoin Ó Broin had immediately stepped in to defend his party colleague, the better judgment call was to allow that defence to be made on air. She correctly identified Ó Broin as a competent and bright
representative of Sinn Féin, who was well able to handle the allegations made against his party colleague. In my view, she was absolutely right.
Despite Kehoe’s contention that RTÉ was 100pc liable for the reputational damage he suffered, the jury in the High Court found that Costello was in fact 65pc liable for what happened, and reduced the award made against RTÉ accordingly, to the astonishingly low level of €3,500.
In 2006, a working party paper on reform of defamation law, commissioned by then-justice minister Michael McDowell, recommended numerous changes to Irish defamation law. One of them was the introduction of a defence providing protection from defamation liability for broadcasters where a contributor made defamatory statements during a live broadcast.
Ominously, this provision of the proposed reforms never saw the light of day, while many of the other recommendations were implemented. The ‘innocent publication’ defence for live broadcasts – which has been part of UK defamation law for many years – simply disappeared from the legislative process and was never heard of again. The Kehoe case demonstrates perfectly the need – in the interests of strong, informed public debate on matters of public interest – of now introducing an ‘innocent publication’ defence for broadcasters of live, on-air shows.