Bad News for Media Victims

Readers may recall the case of O'Connell v Irish Times in which a mother sued the newspaper for distress caused by allegedly negligent reporting of the circumstances of her son's death. The Plaintiff succeeded in the Circuit Court, but the newspaper appealed to the High Court. (Circuit Court decisions have no formal precedential authority).

The appeal was finally reached recently.

Unfortunately, it was settled before the Court could make a decision. The details are not in the public domain but I gather that, in the final result, the Plaintiff got something from the proceedings, but unfortunately not the satisfaction of improving the legal position of media victims.

Bad News for Media Victims

Readers may recall the case of O'Connell v Irish Times in which a mother sued the newspaper for distress caused by allegedly negligent reporting of the circumstances of her son's death. The Plaintiff succeeded in the Circuit Court, but the newspaper appealed to the High Court. (Circuit Court decisions have no formal precedential authority).

The appeal was finally reached recently.

Unfortunately, it was settled before the Court could make a decision. The details are not in the public domain but I gather that, in the final result, the Plaintiff got something from the proceedings, but unfortunately not the satisfaction of improving the legal position of media victims.

Liability for Injurious Publication

You will recall the case of O'Connell v. Irish Times in which the newspaper was held liable for distress caused by negligently inaccurate reporting. It still awaits an appeal hearing.

Now, from Florida, I learn of an interesting case against CNN involving similar (but not identical) issues.

A woman, who may or may not have had a bad conscience about something, was interviewed so aggressively that, allegedly, she was driven to suicide. Her next-of-kin are seeking compensation. Their lawyer, Kara Skorupa, said while she is a firm believer in free speech, "you can't hide behind the First Amendment. If you harm somebody, you can't hide behind an amendment that was never meant to shield you from liability," she said.

We will follow developments with interest.

Judicial Heavyweight to hear Irish Times appeal

Looking at the called-over list for appeals from Cork Circuit Court (postponed from March), I was startled to see that the two judges assigned to the list are the Limerick duo of Murray C.J. (remember him ?) and Johnson P.. It is a little unusual (only a little) for a member of the Supreme Court to sit as a High Court judge, but I don't remember the Chief Justice doing so before. It is somewhat intimidating for practitioners to have him paired with the President of the High Court.

No doubt, it is completely coincidental that our old friend the negligent publication case is listed (at no.16)for hearing, having been adjourned from the last appeal sessions, which - I now recall - also featured a Supreme Court judge.

Update on Tuesday, May 6, 2008 at 02:11PM by Fergus O'Rourke

I have it on the best authority that the "negligent publication" case cannot proceed. Due to the postponement of the appeal sessions from March to June, a crucial witness has become unavailable. (Circuit Court appeals proceed by a full re-hearing).

Jameel - an Unfortunate Decision

By way of Roy Greenslade, I learn of an interesting piece of research from Cardiff University for a book about the state of British journalism, "Flat Earth News" by Nick Davies.Davies writes:

"They found two striking things. First, when they tried to trace the origins of their 'facts', they discovered that only 12% of the stories were wholly composed of material researched by reporters. With 8% of the stories, they just couldn't be sure. The remaining 80%, they found, were wholly, mainly or partially constructed from second-hand material, provided by news agencies and by the public relations industry. "Second, when they looked for evidence that these 'facts' had been thoroughly checked, they found this was happening in only 12% of the stories."

You are of course free to believe that Irish journalism is better. I myself doubt it.

That being so, it strikes me as alarming that so many lawyers have such enthusiasm for the so-called Reynolds defence, which in effect permits publication of defamatory material provided that it relates to a matter of genuine public concern and is the result of responsible journalism.

Unfortunately, there is a great risk that the Jameel case will be seen as setting the standards in relation to the application of these provisos, and I think that it sets them poorly. I have elsewhere referred to my horror at the content of the judgments in that case, and it is now past time to elaborate on what I meant.

The facts of that case were that the Wall Street Journal ("WSJ") named Jameel in a story about Saudi Arabian businesses suspected of involvement in assisting Al Quaeida. That this was capable of being a very defamatory reference hardly needs elaborate explanation. However, if it was true, publication would be quite legitimate, even without invoking the relatively novel Reynolds rule.

The WSJ could not prove that it was true, and instead maintained a Reynolds defence, on the basis that it was a story of public interest (not simply of interest to the public) and that it was a product of responsible journalism. The story allegedly originated in Saudi Arabia, where the WSJ journalist based there claimed to have six separate sources, but it was also confirmed (after a fashion) by a U.S. government source to a WSJ colleague in New York. None of the sources was identified by name, but much detail was given of how the American confirmation was obtained.

The plaintiff succeeded at trial and again, although on much narrower grounds, in the Court of Appeal. The House of Lords reversed.

What concerns me is how the House of Lords (including on this occasion Lady Hale) treated the question of how the public interest justified the naming of Jameel, the endorsement it seemed to give to the use of entirely anonymous sources, and its apparent indifference to the issue of media manipulation, especially by "official" sources. I am also a bit uncomfortable with the rather easy acceptance of the newspaper's argument that the story was of urgent public interest.

Naming Jameel

I would question whether it was justified to name any of the businesses, given the inevitable effect on their reputations, and the flimsiness of the evidence on which the story was based. Jameel had a further objection, in that he was not afforded a reasonable opportunity to comment in advance of publication.

Lady Hale's opinion is representative: "Without names", she said,"the impact of the story would be much reduced". Of course it would, but its defamatory character would be obliterated. The Lords appear to legitimise a "sexing up the dossier" approach as part of responsible journalism.

As to the failure to obtain a comment in advance, they seemed to blame a Jameel subordinate who declined to wake Jameel at 2 a.m.for the sole purpose of giving a reaction. It was also observed that subsequent events proved that he could not have commented in any significant way. This is bad circular reasoning and probably incorrect: Jameel obtained a denial from the Saudi authorities of the story. The Lords dismissed this; "they would say that, wouldn't they ?" well summarises their views. It should be noted that the WSJ admitted that the story would have been no better or worse 24 hours later.

Use of Anonymous Sources

The main horrifying thing about the Jameel judgments is the apparently complete indifference of the Law Lords to the fact that the defamatory story at issue was based entirely on information from sources whose trustworthiness is conjectural. Accepting for the purpose of the discussion that the particular journalists involved were bona fide - this is by no means universally correct, as experience and the research quoted above confirms - why is it a good idea to also accept that their assessment of the credibility of anonymous sources is a valid basis for defaming someone ?

An opportunity for considering how far responsibility can be reconciled with the use and protection of anonymous sources was not taken. (This is a live issue in Ireland at present for reasons other than defamation).

Throughout the judgments, one can detect an undertone of respect almost amounting to deference for the stature of the WSJ, most striking in the speech of Lady Hale:

We have to judge the steps which are known to have been taken against the background of the style and tone of the publication in general and the article in particular. This is not a newspaper with an interest in publishing any sensational information however inaccurate (or even in some cases invented). It is, as the journalist quoted by my noble and learned friend said, "gravely serious" (indeed some might find it seriously dull). We need more such serious journalism in this country and our defamation law should encourage rather than discourage it.

Even Homer nods, though, (and he would certainly nod off if left with only the WSJ to read !) and the general reputation of a defendant should not affect consideration of the merits.

Media Manipulation

Anonymous sources, fairly obviously, make it much easier to manipulate public opinion. Sometimes, this manipulation is a product of conscious media collusion for political or other reasons. More often, the media is an unwitting victim of the manipulation which it then propagates more widely.

I take it that this was not a possibility in the Jameel case, or was anyway not canvassed as such before the Law Lords, but it is very disappointing that they did not show themselves as alert to the issue. They might have calibrated their language differently, in what was always going to be seen as a landmark decision, if they had adverted to this.

Public Interest

The gravamen of the impugned WSJ piece was, the Law Lords agreed, that the Saudi authorities were cooperating with the U.S. in the campaign to exterminate Al-Quaeida. This, it was suggested, almost ipso facto made its publication justifiable, even necessary, in the public interest, against a background of considerable suspicion of Saudi Arabia after the involvement of so many Saudi nationals in the 9/11 attacks.

I find that line of thinking unpersuasive. It appears to me to identify the public interest with the agenda of the government, but perhaps it's just to me that it so appears.

Negligent Publication (update)

Readers may remember the case of O'Connell v. The Irish Times, reported by me earlier this year.In brief, the newspaper was ordered to pay damages because of negligently reporting, allegedly, that a dead man had been a drug-dealer, thus causing his mother psychological injury.

As I anticipated, the decision was appealed to the High Court, and the appeal was listed for hearing this week as you will, of course already have read about here but has been adjourned to the next Appeal sessions in March 2008.

Interestingly perhaps, the delay is due (so the court was told this morning in my own presence)to difficulties in deciphering transcripts of the original criminal trial, the report of which was allegedly negligent.

The Monica Leech Case

Ms Leech is a public relations consultant based in Waterford, who got some valuable Government work from departments headed by local T.D., Martin Cullen. On Joe Duffy's phone-in programme, a caller casually (but in explicit terms) suggested that she might have got the work in return for sexual favours. RTE ended up paying Ms Leech EUR 250k for that in an out-of-court settlement.

The day after the broadcast, Gavin O'Reilly's Irish Independent could not resist reporting the incident, including in its report an unexpurgated verbatim repetition of the offending comment. Ms Leech, a lifetime Indo reader herself, sued for libel.

Somewhat surprisingly perhaps, she lost. The jury decided that the newspaper report had not been defamatory, which indeed, taken as a whole, it probably was not, because the newspaper made it very clear that it was a disgraceful and unfounded allegation. (Defamation consists of uttering a statement about a person which tends to lower the reputation of the subject in the eyes of right-thinking people).

All the same, I cannot help feeling that it is most regrettable that the Indo got away with this, especially as RTE did not. After all, as was pointed out during the trial, the newspaper's article was in more permanent form than the broadcast. Also, the broadcaster did not choose to publish the offensive material, whereas the newspaper did.

One other way that Mrs Leech might have sought (it is too late now) to recover damages for the wrong done to her by her favourite newspaper was that reported by me here last April.

Questionable Role of Press

Per Roy Greenslade, I learn about a report concerning The Aspen Institute's annual Ideas Festival recently. Five journalists were discussing media credibility,

...when a questioner in the audience stopped the conversation cold.

Where, he asked, was the media during the run-up to the war in Iraq ? Why didn't news organizations demand better answers from the Bush Administration on the reasons for the war, such as Saddam Hussein's supposed weapons of mass destruction ? Isn't that your job ?

The journalists on the panel squirmed for a minute and then one said: "Reporters thrive on conflict. The war was going to be a hell of a story." A second panelist reluctantly, hesitatingly, agreed.

As the moderator, I was shocked. Were we really going to sit here in front of this audience and agree that the press had secretly welcomed the war as a way to sell newspapers and build ratings ? That seemed a scandal to me...

... It is certainly true that whatever the reason, the press, along with Congress, failed to nail the Administration down on why this war was necessary. I don't really think journalists relished or welcomed the war, but they did accept it as inevitable, too easily and too soon.

Should There be a Right to Privacy ?

I have to plead "Guilty": I have not examined the possibility that there should not be.

This article by Norman Siebrasse on the consistently stimulating "Overcoming Bias" website tests my previously unthinking belief. Some extracts:

...the thinness of the arguments that are most often raised in favour of privacy inclines me to look for an explanation of the privacy presumption based on cognitive biases...

I can think of two types of cognitive bias that might lead to the privacy presumption. First is simply the salience bias. We’ve all done something wrong that we would like to keep hidden (well, not me, but most people), and the consequences to us of being caught are far more vivid and easily imagined than are the indirect consequences of better enforcement against everyone else...

A second possibility is that we might have evolved a direct cognitive bias in favour of privacy. Suppose that free flow of information is in fact that the best social policy. This would set up a classic prisoners’ dilemma: the best case overall is if no one keeps information private, but the best case for me is that I keep my information private and everyone else reveals theirs. Since everyone has the same reasoning, everyone elects to keep their information private, even though free flow of information would be substantively desirable.

Interesting stuff, but I still believe in a right to privacy.

Newspaper to pay for Upsetting Murdered Man's Mother

Cork Circuit Court saw a rather significant case decided in a very significant way on Thursday, April 19 2007. No journalist was present, which was odd given that the defendant was The Irish Times.

The plaintiff Mrs O'Connell complained that the newspaper had reported that her murdered son had been described by police as a drug dealer, that this was false, had been negligently published and that she had suffered psychological damage as a result, for which she sought compensation.

The newspaper pleaded that it owed no duty of care in these circumstances. Indeed, the media's special role in a democratic society meant that there were very limited circumstances in which it could be liable for anything published, and that these circumstances were confined to the defamation context. There was no actionable defamation here as the alleged victim of it was deceased.

The court (per Judge Con Murphy) decided that the plaintiff had established her case. There was a duty of care, no reasonable care was taken, resulting in substantial and predictable injury. He awarded damages of EUR 15,000.

The decision, which apparently has no precedent in the common-law world, seems quite reasonable to me. It will, I understand from reliable sources, be appealed to the High Court, and all right-thinking people will hope that that court will confirm the decision and thereby give it binding status.

Distinguished author and adviser to Government, Michael McGrath, instructed by Vincent Toher and Company, appeared for the plaintiff. John Lucey, media law expert, was for the newspaper, instructed by Hayes & Company.

I will speak at another time of my pivotal role in bringing this result about. Mr McGrath and I regularly discuss media law, inter multa alia. For regular readers, I hardly need to add that one of the leitmotivs of my outpourings on that area of jurisprudence is my advocacy of stronger media laws. No doubt due to the extreme busy-ness of my life generally, I do not specifically recall this case coming up in those discussions, but I am confident that it must have done.

It is thus rather peculiar that Mr McGrath is having some difficulty in recalling my constant encouragement of his persistence with this ground-breaking case: perhaps he is not as self-aware as I am !

The "legitimate and essential responsibility of newspapers"

This week has seen an interesting story from Liberia.

In what seems to me to have been an obvious set-up (perhaps by journalists, but more probably by political rivals), a government minister was photographed in flagrante delicto. The photograph was published in explicit quasi-pornographic detail by a newspaper, and the minister lost his job. The newspaper was closed down by the authorities. I do not approve of this and unsurprisingly the president of the World Association of Newspapers Gavin O'Reilly - yes, that's our own Gavin, son of Dr A.J.F. - condemns it.

However, the terms in which he does so are revealing:

While the publication of sexually explicit photos is controversial, the investigation of public officials is a legitimate and essential responsibility of newspapers.

In other words, he says that he believes that it is a legitimate and essential responsibility of newspapers to pry into the sexual behaviour of individuals who happen to hold public office.

Why ?

I do not exclude the possibility that the sexual behaviour of public figures might in some circumstances be a matter of legitimate public interest - though it should be noted that I would require a considerable amount of persuasion that it was justifiable to publish such material - but in the Liberian case, there was no suggestion of the minister's private life having any relevance beyond the usual guff along the lines of "how could anyone trust this man ?".

(No politician should ever be trusted is my view; the old wisdom was "put not your trust in princes").

Gavin O'Reilly is a public figure more powerful than most, if not all, politicians. I'll bet that he does not accept that his private life, much less his behaviour in the bedroom - any bedroom - could ever be of legitimate public interest.

After all, the great Vincent Browne has often claimed on his radio programme that O'Reilly does not even allow he media he controls to fully cover the news from the Planning Tribunal. It may be purely coincidental - if I am to be contortionately fair - that Dr A.J.F. (the da) is implicated in the matters upon which he apparently does not see it as their "essential responsibility" to properly and fully report.

The Privacy Bill (Ireland)

The Irish government's proposed law on the protection of privacy is still moving slowly through the Senate, which is the upper house of parliament. Since the lower house has not seen it yet, it is difficult to believe that it will become law before next summer's general election. This will accord with the Justice Minister Michael McDowell's real wishes: the Bill is beloved of the governing coalition's majority party, but is personally repugnant to the libertarian Minister, leader of the Progressive Democrat party, who is also close to media interests in Ireland.

I have made available a link to the text of the Bill here

Your Privacy is my Business

A celebrity couple - I refuse to name them - are notoriously going through a "spot of marital difficulty" at present, and some rather nasty material is being written about it in the media. This was the background to a discussion on BBC Radio 4's "Any Questions" last weekend. A "media person" who I gather from the BBC website was Anne McElvoy, Executive Editor of London's "The Evening Standard", defended the invasion of privacy involved on the basis that the material had not been invented by the media but had, she asserted as matter of fact, been provided to the media by the parties. So, that's all right, then ? Well, not for me. Some questions arise:

• Do journalists write their own stuff any more ?
• Do journalists never invent ?
• Is the Common Good unaffected if warring parents "wash their dirty linen in public" ?
• How about the good of affected parties such as e.g. their children ?

I congratulate the Government, however impure its motivation, on proposing legislation in this area.

Why There will Always be Defamation law

Just try saying quietly to your self:

"My reputation has no monetary value whatsoever" .