DEFAMATION PROCEEDINGS ISSUED last week by Sinn Féin TD Chris Andrews are the latest in a succession of legal actions taken by politicians against media outlets in recent years, a trend causing increasing disquiet within newsrooms across the country.
Now current and former newspaper editors have spoken to The Journal about their concerns at the impact of such litigation by politicians on publications – and of the potential for a chilling effect arising from the threat of such cases, with consequences for media freedom and ability of the press to hold power to account in Ireland.
The spotlight is particularly on Sinn Féin, whose members have taken a number of cases – most recently Andrews, a TD for Dublin Bay South, who is suing not only The Irish Times but also its political correspondent, Harry McGee.
Andrews responds
The Journal asked Andrews about the case, which relates to an article on Sinn Féin’s response to the Hamas attack on Israel on 7 October. He said:
“My objective in pursuing legal action is to clear my good name. The easiest thing was for The Irish Times to correct its error.
“This isn’t about pursuing any individual journalist. My legal team have made it clear to The Irish Times that my action concerns their outlet and not any individual.
“As this case is before the courts it would not be appropriate for my to comment further at this time.”
Both The Irish Times and journalist Harry McGee are cited as defendants in the defamation action lodged by Chris Andrews’ legal team. McGee is being represented by the Irish Times’ solicitors, Hayes.
In a statement last week, Press Ombudsman Susan McKay said she deplored the practice of powerful public figures suing individual journalists in response to public interest news reporting.
The Journal asked if Andrews had contacted the Press Council prior to taking legal proceedings, but Andrews said he would not be commenting further. He also declined to comment further when asked which point in the Irish Times article he took issue with. The Irish Times has not made any changes or edits to the article.
If someone makes a complaint about a news article to the Press Council and it is upheld, the publication concerned must publish the upheld decision unless it has been appealed successfully by the editor.
Legal cases
Andrews’ case is one of a number that members of Sinn Féin have taken against Irish media outlets in recent years.
In April last year, Sinn Féin leader Mary Lou McDonald began legal proceedings against RTÉ.
McDonald’s defamation case against RTÉ was flagged with the Council of Europe as a potential threat to media freedom by the Index on Censorship, a non-profit organisation based in the UK.
When pressed at the party’s Ard Fheis at the weekend on the fact that her case had been labelled a strategic lawsuit against public participation (Slapp) McDonald said: “I have done no such thing and I reject that out of hand.”
Promised defamation law reform in Ireland will include measures against Slapps, defined in the draft law as “strategic and abusive use of vexatious litigation, by a powerful entity or individual to weaken and deter public interest discussion”.
Sinn Féin TD Donnchadh Ó Laoghaire also sued RTÉ in April 2020. The case was settled out of court in April 2021. Another Sinn Féin TD, Aengus Ó Snódaigh, received an apology on air from broadcaster Joe Duffy in relation to the same programme.*
In September, Sligo-Leitrim TD Martin Kenny began High Court proceedings against Irish Independent-publisher Mediahuis Ireland, An Garda Síochána and the State over an alleged breach of privacy. Kenny’s case relates to privacy law and not defamation.
And, as recently as last week, Michelle O’Neill was not awarded damages at the High Court in Belfast after taking a case against a DUP councillor who said she would be “put back in her kennel”. The judge, Master Evan Bell, in his ruling indicated that it should never have reached the High Court.
He accepted that the comments were abusive, highly offensive and misogynistic but said they fell short of being defamatory, having had “no adverse impact on Ms O’Neill’s reputation, either in the local community or internationally”.
The judge also added: “When the court’s time is taken up with cases involving disputes between politicians involving insults which one imagines are sometimes heard in school playgrounds or outside pubs on Saturday nights, then serious cases… inevitably suffer delay. This is undesirable and not in the public interest.”
When questioned by The Journal about the case at the Sinn Féin Ard Fheis, O’Neill said:
“The judge has had his say on that but I equally am entitled to have my say. I will call out misogyny at every turn and I am just going to take legal advice on that.”
The Journal attempted to contact Ó Laoghaire and Kenny for comment on politicians taking cases and whether other routes prior to court action were considered, however, no response was received by the time of publication.
Fianna Fáil and Fine Gael
Senior government figures have been quick to criticise the main opposition party on this issue, with Tánaiste Micheál Martin saying the party’s actions could have “a chilling effect” on media and journalists.
Higher Education Minister Simon Harris said at the weekend that it was “particularly chilling” for a politician to sue an individual journalist.
We’re all in politics, we’re all big boys and big girls, things get written about us – sometimes we like them, more often than not we don’t.
“If this is a party that wishes to be in Government, you have to be ready for a bit of scrutiny.”
However, politicians taking defamation cases is not confined to Sinn Féin with members of Fine Gael and Fianna Fáil involved in suits over their years in power and opposition.
In 2018, then-Fine Gael Senator Paudie Coffey settled a High Court action over a newspaper article about boundary changes in south Kilkenny which he said defamed him. Speaking afterwards, his lawyers welcomed that the local newspaper group had “recognised his good name and reputation and…stated that he is a person of integrity”.
Last week, former Fine Gael TD Maria Bailey received an apology from Mirror Group Newspapers as part of a settlement of defamation action related to two of its articles published about the “swing-gate” controversy. Speaking after the settlement was agreed, Bailey said the apology had been “a long time coming after a difficult couple of years”.
Speaking to The Journal this week, Bailey said: “The only response I would have is that I was defamed and the paper has apologised and a line is drawn in the sand.”
‘The minute lawyers get involved, it escalates’
Daniel McConnell, the editor of the Business Post and former political editor of the Irish Examiner, told The Journal that while politicians have a right to defend their good name, recourse to the courts should only ever be a last resort.
“There should be an exhaustion of all other avenues before you even look to go to the court because it’s a roll of the dice not only for the plaintiff, but also for the defendant as well. Those seeking remedies in the court are taking a big risk themselves because there’s no guarantee that they will win an action,” he said.
He described the suing of individual journalists as “a more sinister and more dangerous development”.
“I think what you’ve seen from a number of political parties, and one in particular, is an increased frequency of very major libel actions being taken against journalists and media organisations, and one would wonder about the frequency of such claims and such actions.”
Cases in which individual journalists have been sued alongside their publication have happened before, most famously in the case of Albert Reynolds’ 1995 action against The Sunday Times.
McConnell said he has often found that the quickest way to get a resolution to a complaint is to pick up the phone and speak to someone directly “rather than lawyering up”.
“The minute the lawyers get involved, it delays everything and escalates everything,” he said.
Echoing the views of the Press Ombudsman, he said that any holder of public office should reflect before looking to take legal action against an individual journalist, adding that this is not in “anybody’s interest”.
‘Media resources are dwindling’
Frank Fitzgibbon was one of the founders of The Sunday Business Post and edited The Sunday Times for 15 years until 2020. He told The Journal that politicians taking the legal route is a long-running issue for media companies.
“Every case taken against you, even the threat of a case, is hugely costly and hugely time consuming and that’s the real problem. You have to consult with lawyers, you can’t ignore letters when they come in, you can’t ignore legal threats. It does take up a lot of resources – and media resources are dwindling,” he said.
Fitzgibbon said the longer-term effect of this is that “they wear you down”.
“Eventually when a story arises about a person who’s particularly litigious, you don’t look at it twice, you look at it three or four times before you decide what to do about it,” he said.
“You will then eventually take a position where you say look, if we do this, what is likely to happen? If it’s deemed to be marginal in any respect, and you look at the costs that are likely to be involved if you get sued again, you will think twice about it.”
He said many newspapers would reject certain stories about certain individuals because they would feel “it’s not worth the hassle”.
That’s where the real problem lies and that’s why it’s very difficult for media companies with limited resources to do their job properly when they’re faced with this kind of legal action.
Dave O’Connell, the group editor of The Connacht Tribune, told The Journal: “I would always say with any of these cases that if your right to your good name is what you’re looking for, the Press Council is the way to go.
“If you feel that your name has been damaged or the same, I would think that the most important thing is that that is resolved as speedily as possible. If you go through the courts, you’re looking at a number of years before that is resolved.
“I think that situation is exacerbated for a politician, because that means there could be some several elections or at least one election, during which time this shadow in their eyes at least continues to hang over them.”
‘A big one will kill us’
O’Connell added that smaller, independent publications will settle out of court almost every time a case is filed against them because they can’t afford the lawsuits – but even a settlement can have “huge consequences”.
“A big one will kill us, and by a big one, I’m talking about something over €100,000.
That is not a big case.
“You could lose that comfortably in the Circuit Court.
“There was a time when we all thought the traditional media were all flush with cash and I’m old enough to remember that, but not anymore. Not anymore. In our case, it’s an economic decision. It’s not a legal decision.”
He added that if publications decide to go to court to plead their case, it means having “the future of your company in your hands”.
Daniel McConnell of the Business Post noted that newspapers were operating in an environment of constrained resources.
“We’re in a totally different economic space. Eighty-five percent of advertising revenue that was there has now gone to the Googles and the Facebooks and all the rest of it,” he said.
He said in this context, Ireland’s stringent defamation legislation has a particularly “chilling impact” on how publications operate.
“The other big issue that needs to be reinforced is that newspapers are often now operating without [libel] insurance, so there isn’t that safety net over an insurance claim, and even where insurance does exist, it’s after a pretty large excess has to be paid. So the deck is pretty much stacked against us,” he added.
‘If political figures choose the courts, it sends a signal’
Neil Leslie, group print editor of Reach Ireland, publishers of The Irish Daily Star and The Irish Mirror, said politicians going straight to litigation undermined the Press Council as an institution.
“If political figures choose the courts as their first option, it sends a signal to others that the codes of conduct and mechanisms introduced by Government can be readily ignored,” Leslie said.
Ireland’s defamation laws are recognised as among the strictest in the world.
“The level of damages and the costs of running cases are enormous, and pose an existential threat to many media organisations, particularly local papers.
“For that reason even the threat of an action has an absolute chilling effect on journalists pursuing legitimate public interest stories.”
Fitzgibbon, a former member of the Press Council, agreed that politicians should be leading the way in terms of using the Press Council – not least because not enough people know that it exists or what it actually does.
He added that an adverse Press Council ruling was considered a serious and embarrasing matter by newspapers, as they must publish the council’s ruling in a prominent position.
However, unlike a legal case, a Press Council complaint does not pose a financial threat to any media organisation – as well as being cost-free to the complainant.
Press Council responds
In the last two years, just five cases from holders of public office have come before the Press Council. None of these involved a member of the three main political parties.
Press Ombudsman Susan McKay told The Journal she did not know the reason why more politicians did not bring their complaints to the Press Council before taking the legal route, but said they should be questioned on it.
“It’s particularly important in relation to politicians because the media and the Office of the Press Ombudsman hold power to account, so diminishing the ability of the media to hold power to account is definitely not in the interest of democracy,” she said.
She added that promised reform of Ireland’s defamation laws would “relieve the pressure” on media organisations to some degree, but having recourse to law would always be expensive.
“We’re seeing newspapers having to pay out a great deal of money even just to defend the case,” McKay said.
“Even just to prepare for a lawsuit, it’s very expensive for a newspaper and it’s extremely alarming for an individual journalist to be sued because the expense is also going to be significant for them.”
She urged politicians from all parties to “think twice” before taking a newspaper or a journalist to court.
Political parties respond
Over the weekend, at the Sinn Féin Ard Fheis, leader Mary Lou McDonald denied her party was attempting to “stranglehold democracy” and defended the decision of party members to sue the media.
When questioned by The Journal in Athlone on Saturday, McDonald strongly rejected any claim that her party was trying to silence the media by mounting legal actions, stating that everyone has a right to defend their reputation.
“People have the right to use the mechanisms available to them to vindicate their name,” she said.
It was put to her by The Journal that Sinn Féin politicians have not used the Press Council mechanisms in recent years, which is designed to use conciliation to avoid the legal route, to which she replied: “Well, that’s up to each individual to make their own call.”
The Journal asked if she would support a policy within her party to encourage politicians in Sinn Féin to use the Press Council mechanism, McDonald said:
“People will be aware when they have a complaint or an issue of all of the options of available to them. People generally take advice on it.”
McDonald was also questioned extensively on RTÉ’s The Week in Politics and This Week programmes on Sunday.
McDonald told This Week: “I have never seen a situation, ever, where somebody simply goes directly to lawyer up or directly to head for the courts, that’s not how it works. Nobody in my view takes a case like that lightly.”
When asked if it was appropriate for a politician to sue an individual journalist, she said: “I think the objective of this should never be and can never be to personalise it to an individual.”
McDonald said she was not consulted by Andrews prior to taking the case against The Irish Times and Harry McGee, stating that it was up to individuals to make their own choice on such matters.
“I don’t believe these matters should be around any individual, at all at all,” said the Sinn Féin leader.
When asked if Andrews should now withdraw the case taken against McGee personally, McDonald said:
Chris should do what Chris believes is the correct thing to do.
She added that she was sure Andrews approached The Irish Times prior to filing legal proceedings, adding, “I’m not sure what happened thereafter.”
When asked by The Journal if it is the party’s policy to encourage members to first take a case to the Press Ombudsman and Press Council rather than go the legal route, a Sinn Féin spokesperson said:
“Any decision regarding legal action is a matter for the individual concerned and is only taken in the most serious of situations.”
When asked about the party’s position on the current defamation laws and whether it was in favour of planned reforms, the spokesperson said: “We support the reform of existing legislation.
“The Department of Justice has promised for many years to publish a review of existing laws and to bring forward amendments to them. We will examine these proposals when published, with a view to ensuring that legislation is modernised.”
Fianna Fáil said its position was in line with the Programme for Government commitment to review and reform defamation laws.
Fine Gael said it was “committed to reforming our out of date defamation laws”, adding that the new Bill being developed by Minister McEntee “will provide for more efficient and less costly resolutions of defamation proceedings”.
“Fine Gael believes an independent and free media scrutinising all issues of Irish life, without fear or favour, is a strong cornerstone of our democracy,” a spokesman said.
Labour said it “strongly supports the work the Press Ombudsman and Press Council” and “would urge the use of those mechanisms to resolve any concern with media coverage or misreporting, if initial engagement with the particular media outlet to resolve the concern wasn’t satisfactory”.
“Legal action should be a last resort only once other avenues for resolving a dispute have failed,” it said.
A Labour spokesperson said that while everyone has a right to protect their reputation and good name, it was “concerning to see legal proceedings used as the default response rather than a last resort”.
The Green Party was also contacted for comment.
Defamation law reform
Media organisations in Ireland have long called on the government to reform the country’s defamation legislation, which, it has been argued, is the most strict in Europe and sets too low a bar for a lawsuit to be pursued.
The Taoiseach said last week that a revised Defamation Bill would be published “quite soon”.
One of the proposed reforms in the new bill is a requirement for solicitors to inform their clients of alternative dispute resolution options before issuing defamation proceedings.
Neil Leslie of Reach Group said: “A cap on damages, a serious harm test to discourage vexatious complaints and the abolition of jury trials which massively inflate the length and cost of defamation actions are some of the reforms the media industry is calling for in the upcoming reform of the Defamation Bill.
“But political figures leading by example and using the press complaints procedure instead of the courts is something that would also be very welcome and can happen straight away.”
*This article was amended on 21.11.23 to reflect that only Ó Laoghaire took a court action in relation to this programme.
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