THE MAIL ON Sunday’s controversial Sunday Tribune frontage cover may have been “ill-judged” or in “poor taste” but it was not unlawful, counsel for the newspaper argued in court today.
Closing arguments were presented to Judge Conal Gibbons at Dublin District Court today in the National Consumer Agency’s prosecution of the newspaper for its alleged breach of the Consumer Protection Act 2007 when it published a controversial wraparound carrying a Sunday Tribune masthead, days after the now-defunct paper went into receivership on 6 February this year.
The court has heard witness evidence from the former editor of the Sunday Tribune Noirín Hegarty and the Irish Mail on Sunday’s current editor Sebastian Hamilton as well its owner Associated Newspapers Ireland’s managing director, Paul Henderson. A number of consumers have given evidence claiming they were “duped” into buying the paper.
In his closing submission to the court today the defence barrister, Neil Steen SC, argued that “everyone knew there would be no Sunday Tribune in the shops” on Sunday, 6 February as it had featured prominently in the print and broadcast media in the days prior.
He said the Irish Mail on Sunday’s editor and managing editor were both saddened by the loss of the Tribune. Steen said:
There were no crocodile tears. Journalism is a small community. They had friends and acquaintances who worked for the Tribune and who were suddenly out of the jobs.
Steen told the court that in producing the special edition wraparound the publishers were seeking to make consumers stop and wonder and “perhaps pick up the paper” and argued that the court had heard “no evidence whatsoever” that Associated Newspapers Ireland had tried to deceive or mislead the consumer.
“This was a marketing exercise – a stunt if you like,” Steen said describing that issue of the paper as “a special edition designed for readers of the Sunday Tribune” and saying that it would not have been in the newspaper’s interests to court new readers by seeking to deceive. It would have been “commercial insanity” he argued.
Steen described the NCA’s legal action as having been prompted by the complaints of people associated with Independent News and Media and described it as “a storm in a media teacup”. He said the paper “greatly regrets” that any consumer was misled but argued it was very small percentage who identified themselves as having been misled.
“It does not follow from the fact that six people say they were misled that the average consumer would have been misled,” he argued.
He concluded that while the court may feel that the publication of the wraparound “was ill-judged or that it was in poor taste” that this does not mean it was unlawful.
Responding, the prosecution barrister, Jonathan Kilfeather SC, for the NCA, said that the arguments of Steen were not borne out in the evidence that people knew of the Sunday Tribune ceasing publication. He said that the assertion that the Irish Mail on Sunday was offering people a chance to try out its paper was “a lot more than an attempt to persuade” saying it was “intentional deceit”.
Kilfeather said that the evidence given by Hamilton and Henderson was “by and large evasive and self-serving” saying that in evidence Hamilton had switched from saying the special edition looked “a little like” the Sunday Tribune to “a lot like it” arguing this was a significant admission. He said that in doing this the paper “deliberately designed” a front cover to look like the Tribune’s and that “clearly indicates” there was a decision taken to deceive the consumer.
Kilfeather also argued that in enclosing a packing note with the bundles of the special edition newspapers delivered to retailers and asking them to place the papers in the spot where the Sunday Tribune normally went, Associated Newspapers Ireland were encouraging retailers “to go along with the deception”.
He said that the only reference to the paper being the Irish Mail on Sunday on the frontpage was four or five lines down the text of the lead story and described the defence’s view that there were elements which identified the paper as the Mail on the frontpage as “nonsense”.
Kilfeather said there was no evidence that if the paper’s in-house consul Michael Kealey – who gave evidence yesterday – had advised the paper not to go ahead with publication that it would have acted as such. He said that the Consumer Protection Act was not on Kealey’s “radar” when considering any possible legal implications of the wraparound.
He argued that Henderson and Hamilton were trying to work out “what they could get away with” when they decided to publish the frontage wraparound and rejected that it was merely a marketing exercise, stunt or a ploy.
The evidence from the six consumers was clear, Kilfeather argued, that they thought they had bought the Sunday Tribune and it should not have been expected of them to leaf through the paper to establish which paper it was.
He concluded that management “knew they were engaged in something that was likely to deceive”.
Judge Gibbons said he intends to deliver a verdict in the case on Friday, 16 December.