Billionaire businessman Denis O’Brien can reassert the “truth and honest opinion” defence in response to two solicitors’ claims they were defamed in a press statement issued in response to a report on the concentration of media ownership in Ireland, the Court of Appeal has ruled.
Mr O’Brien and his spokesman James Morrissey are being sued by two of the four lawyers who co-authored the 2016 report commissioned by Sinn Féin senator Lynn Boylan, then an MEP.
Northern Ireland-based Darragh Mackin and Gavin Booth allege the press statement issued by Mr Morrissey on behalf of Mr O’Brien implied they acted for and received payment from the IRA and were unprofessional and lacked integrity.
They claim they were defamed by a sentence in the October 26th, 2016, press release that said: “Sinn Féin/IRA certainly got the report they paid for”.
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The defendants deny the material defamed the plaintiffs or means what the plaintiffs allege.
Mr O’Brien, who used to hold substantial stakes in radio and print media companies, and Mr Morrissey advanced defences of truth and honest opinion, qualified privilege, and fair and reasonable publication in a public interest matter.
In October 2021, the High Court struck out their various pleas of truth and honest opinion as part of pretrial motions brought by the plaintiffs. The judge found none of the six meanings contended for by the defendants for truth and honest opinion met the relevant legal test.
In a judgment on Friday, the Court of Appeal allowed Mr O’Brien and Mr Morrissey to reinsert and amend most of these pleas.
On behalf of the three-judge court, Mr Justice Maurice Collins said a strikeout of a defence of truth or honest opinion in a defamation action is an “exceptional order” that will have “far-reaching consequences” for the defendant.
He said the plaintiffs have elected to sue on a single sentence extracted from the longer press statement. They have pleaded various meanings of those words, including that they acted for the IRA, and the defendants have pleaded alternative meanings, he said.
The defendants claim the report was not an independent study, was neither balanced nor fair and was designed to advance the political agenda of Sinn Féin, which, they say, supported and continues to be associated with the IRA.
Mr Justice Collins did not accept the plaintiffs’ argument that the defendants had to plead the truth of the allegation that the plaintiffs had associated with the IRA or else they had to accept they did not have the truth defence. To accept this contention would permit the plaintiffs to impose their contested meanings of the words on the defendants, said the judge
That the plaintiffs’ interpretations of the words may ultimately be accepted by a jury does not mean that the defendants should be excluded, at this stage, from pleading alternative meanings and seeking to prove the truth of their meanings, he said.
If the defendants wish to rely on the plea that the report prepared by the solicitors was not an “independent study”, they must provide proper particulars of facts on which this is based, the judge said. This is especially so given the plaintiffs are legal professionals and the report expressly stated it was an independent study, he said.
Mr Justice Collins disagreed with the High Court’s view that the defendants’ contention that the report was “designed to advance the political agenda of Sinn Féin” was “unsustainable”. The defendants must, however, provide further details to support the plea, he said.
Two further meanings contended by the defendants, regarding an alleged ongoing association between Sinn Féin and the IRA, were not capable of being construed from the words complained of, he found. The activities of the IRA and the relationship between it and Sinn Féin are “not relevant” to any of the permissible meanings, he said.
He warned the truth defence comes with risks, including an increased award of damages where plaintiffs are successful.
Mr Justice Collins found that the honest opinion defence was not pleaded clearly or satisfactorily. The defendants must clearly set out the allegations of fact on which the opinions were based, he said.
The judge stressed that his findings do not imply any judgment as to the merits or ultimate prospects of success of the defence, as this will be a matter for a jury.
The court also made some changes to various High Court orders for the discovery of documents sought by both sides.
Mr Justice Collins said the report commissioned by Ms Boylan expressed “extremely grave concerns about the high concentration of media ownership in the Irish market, and in particular regarding the position of INM and Mr Denis O’Brien”.
It also highlighted “grave” concerns about “sustained and regular threats of legal action by Mr O’Brien to media organisations and journalists who are engaged in newsgathering or reporting about his activities, and the ‘chilling effect’ of the current defamation laws”.
One of Ireland’s richest men, Mr O’Brien in 2016 held a controlling interest in Communicorp, a company with significant holdings in Irish commercial radio, and held a substantial shareholding in Irish News and Media (INM), which then published the Irish Independent and Sunday Independent.
He exited the Irish media after 30 years when Communicorp was sold to Bauer Media Audio in 2021, nearly two years after INM was sold to Mediahuis.
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