Harry Browne, Author of The Frontman: Bono (In the Name of Power) gives us the low down on defamation, libel & the almighty power of the litigious.
Libel is scary. As professional reporters, editors, presenters and producers, libel haunts us.
In our every working moment, and in all too much leisure-time too, lurks the fear that we’ve said or suggested something, or we’re about to say or suggest something, that could damage a person’s reputation and that we can’t demonstrate definitively to be true.
We may have done it accidentally. We may not even have named the offended person. Some civilian might have slipped it in on a phone-in. We may have been obviously (to us) joking. No matter. We fear seeing letters on solicitors’ headed notepaper, knowing that even if we’re in the right we’ll probably have to pay some lawyer to tell us so.
And so comes caution. Excessive caution. When I worked in the Irish Times, we were under instruction to avoid printing pretty much anything at all about ‘financier’ Dermot Desmond, lest his lawyers engage us. Once I wrote something about concert promoter Denis Desmond and the sub-editor wanted to kill it, just because of the resemblance of the name to the dreaded Dermot’s.
And then there was that other fearsomely litigious type, Denis O’Brien. It’s funny, in a stomach-sinking sort of way, to think that O’Brien, with Dermot Desmond alongside him among the main shareholders, now controls Independent newspapers.
On the other hand, if you’re not rich, lawyered and with some semblance of decent reputation to protect, you don’t scare us so much. One reason some newspapers love to fill their pages with fearless (er, scurrilous) attacks on ‘scumbag’ criminals is that those guys have track records that would see them laughed out of libel court.
The Defamation Act 2009, which is now the only relevant legislation in town, says “”defamatory statement” means one that “tends to injure a person’s reputation in the eyes of reasonable members of society”. No reputation, no defamation, scumbag.
So the sweet ubiquity of Paul Williams is, in a real sense, a consequence of our libel environment. Defamation is a tort, not a crime. You get sued, not prosecuted. And the law, in its perhaps-slightly-improved 2009 incarnation, seems to offer some pretty good defences. The old reliable one — that the relevant statement is actually true, though it’s up to the defendant to prove it — is joined by the defence that the statement consisted of “honest opinion”, and by a couple of helpful “public interest” references, e.g. “fair and reasonable publication on a matter of public interest”.
The fine “open letter to RTE” by barrister Brian Barrington that did the rounds at the height of the Panti scandal was based mainly on the idea that the statements on homophobia voiced on TV by Panti (Rory O’Neill) were honest opinions. On the face of it, this seemed incontrovertible, and people were rightly enraged that RTE had backed down so quickly. A public-interest defence might also have been deployed.
But surely RTE wasn’t lying about the legal advice it got to settle, and settle quickly, with John Waters and Iona?
The fact is that when the newly minted defences against defamation were put to the test in the High Court last year, the Irish Daily Mail ended up making Denis O’Brien €150,000 richer. (Legal costs were probably a multiple of that.) Journalist Paul Drury’s opinions about O’Brien’s work in Haiti may have been honest but, the jury said, they weren’t founded on facts and they weren’t even a matter of public interest. Ouch.
The Mail article had, it seemed, gone beyond drawing comparisons between O’Brien’s charity work abroad and the tribunal findings against him at home: it had tried to describe the billionaire’s alleged motivations, saying he did the charity to deflect from the findings.
So would a similar jury have found that “homophobia” isn’t simply a provable “what” (i.e. campaigning against gay marriage) but that it’s also a unsupportable “why” (fear and hatred of gay people)? RTE wasn’t going to wait, with lawyers’ meters running, to find out.
Perhaps RTE, as a public service broadcaster, should have fought the case, in the interest of defending the right to free expression. That would have been interesting, but it wouldn’t have changed the basic picture: whatever the decent principles that lie behind it, the Defamation Act, like so many other pieces of law, is in this society simply a tool for the rich and powerful to protect themselves and advance their interests.