THE CIRCUIT COURT
Record No: 009888
INDEPENDENT STAR LIMITED TRADING AS IRISH DAILY STAR ON SUNDAY
Judgment of His Honour Judge J. Mathews S.C. given on 3rd day of November, 2010
This is an Application for
(1) A Declaration pursuant to s. 28(1) of the Defamation Act, 2009 that the Defendant published false and defamatory statements concerning the Plaintiff such statements being published in the Defendant’s newspaper, Star on Sunday, on September 5th, 2010.
(2) An Order pursuant to the Defamation Act, 2009, s. 30 subsection 1 directing the Defendant to publish a correction and to direct the form, content, extent and manner of publication of the said Correction in such manner as to provide coverage comparable to that given to the false and defamatory statements.
(3) An Order pursuant to the Defamation Act, 2009, s. 33, Prohibiting the Defendant from publishing or further publishing the false and defamatory statements in respect of which the within Application is made.
(4) An Order for the plaintiff’s costs of and incidental to the Application and for such legal costs incurred in seeking to have the Defendant correct the false and defamatory statements of the Defendant concerning the Plaintiff.
The Application is grounded upon the proceedings already had herein this notice of motion (with proof of service thereof), the affidavit of James MacGuill affirmed on 5th day of October, 2010, the verifying affidavit of the Plaintiff sworn on 5th day of October, 2010, the affidavit of Paul Cooke on behalf of the Defendant sworn on 15th day of October, 2010 and the replying affidavit thereto of James MacGuill affirmed on 18th day of October, 2010 together with all exhibits contained in the material affidavits.
As this is the first Application of its kind under the Defamation Act, 2009 it is necessary to set out in detail the Remedies claimed under part 4 of the Defamation Act, 2009 and in particular s. 28, s. 30 and s. 33 of the said Act.
Section 28 deals with a Declaratory Order
28(1) A person who claims to the subject of a statement that he or she alleges as defamatory may apply to the Circuit Court for an Order (in this Act referred to as a “declaratory order”) that the statement is false and defamatory of him or her.
(2) Upon an Application under this section the Court shall make a declaratory Order if it is satisfied that –
(3) For the avoidance of doubt, an applicant for a declaratory order shall not be required to prove that the statement to which the application concerned relates is false.
(a) The statement is defamatory of the applicant and the respondent has no defence to the Application
(b) The applicant requested the respondent to make and publish an apology, correction or retraction in relation to that statement and
(c ) The respondent failed or refused to exceed to that request or, where he or she exceeded that request, failed or refused to give the apology, correction or retraction the same or similar prominence as was given by the respondent to the statement concerned.
(4) Where an application is made under this section, the applicant shall not be entitled to bring any other proceedings in respect of any cause of action arising out of the statement to which the application relates.
(5) An application under this section shall be brought by motion on notice to the respondent grounded on affidavit.
(6) Where a court makes a declaratory order, it may, in addition make an order under section 30 or 33, upon an application by the applicant in that behalf.
Correction Order Section 30
30(1) Where in a defamation action there is a finding that the statement in respect of which the action was brought was defamatory and the defendant has no defence to the action, the court may, upon the application of the plaintiff, make an order (in this Act referred to as a “Correction Order”) directing the defendant to publish a correction of the defamatory statement.
(2) Without prejudice to the generality of subsection (1) a correction order shall –
(3) Where a plaintiff intends to make an application under this section, he or she shall so inform-
Order Prohibiting Publication of a Defamatory Statement
(a) specify- (1) the date and time upon which, or (2) the period not later than the expiration of which, the correction order shall be published, and
(b) specify the form, content extent and manner of publication of the correction and shall, unless the plaintiff otherwise requests, require the correction to be published in such manner as will ensure that it is communicated to all or substantially all of those persons to whom the defamatory statement was published.
33 (1) The High Court, or where a defamation action has been brought, the court in which it was brought may, upon the application of the plaintiff make an order prohibiting the publication or further publication of the statement in respect of which the application was made if in its opinion-
(2) Where an order is made under this section it shall not operate to prohibit the reporting of the making of that order provided that such reporting does not include the publication of the statement which the order relates
(3) In this section, “order” means-
The Act further provides in s. 34 for summary disposal of such an action.
34 (1) The court in a defamation action may upon the application of the plaintiff grant summary relief to the plaintiff if it is satisfied that—
(2) The court in a defamation action may, upon the application of the defendant, dismiss the action if it is satisfied that the statement in respect of which the action was brought is not reasonably capable of being found to have a defamatory meaning.
(3) An application under this section shall be brought by motion on notice to the other party to the action and shall be grounded on an affidavit.
(4) An application under this section shall not be heard or determined in the presence of a jury.
For the purposes of the Act of 2009 “defamatory statement” means a statement that tends to injure a person’s reputation in the eyes of reasonable members of society and “defamatory” shall be construed accordingly.
Mr. Hugh Mohan S.C. on behalf of the Plaintiff instructed by James MacGuill and Company Solicitors outlined in his opening submissions how by letter of 9th September, 2010 the Plaintiff solicitors wrote to the defendant acting on behalf of the Plaintiff Barry Watters of Hazelwood Avenue, Dundalk, Co. Louth who was presently a serving prisoner in Arbour Hill Prison in relation to an article carried in the Star on Sunday edition of 5th September, 2010 referring to the Plaintiff by name, address and accompanied by his photograph. Mr. Mohan outlined how the article entitled “LARRY’S SECRET SHOWER BUDDY” purported to be an expose of a relationship quite clearly presented to the reader as being sexual in nature between Barry Watters the Plaintiff and one Larry Murphy a recently released and extremely high-profile convict.
Mr. Mohan contended that the article contended that the Plaintiff had variously a “seedy” and “weird” relationship with Mr. Murphy and was “close to him” and a participant in a “bizarre and secretive relationship”. The article Mr. Mohan said purported to give an account of the conduct of the Plaintiff and the said Mr. Murphy within the prison, attributed to “prison sources” and detailed conduct which were it to be true would constitute a serious violation by the Plaintiff of prison rules.
It was stated in the said letter that the entire tone of this sensationalist article was grossly defamatory of the Plaintiff and it would appear had been calculated to inflict maximum damage upon him. It was not indicated in the article who the “prison sources” may be, but what was beyond argument is that no effort was made to confirm any of the details in the article with the Plaintiff prior to publication.
In that letter and for the record the Plaintiff stated that he has never been involved in any form of “relationship” with Larry Murphy, much less the relationship described in the article. He had not shared shower facilities and has not accompanied Larry Murphy on walks in the prison yard as was claimed in the article.
Accordingly it follows argued Mr. Mohan from the letter that the headline from the article and each of the other references to the claimed relationship which did not exist in any shape or form were false and defamatory of the Plaintiff.
In addition to the falsity of the headline Mr. Mohan indicated how in the terms of the written letter on behalf of the Plaintiff of 9th September, 2010 to the Defendant how in addition to the falsity of the headline of the article each of the following ten statements were false and untrue and have been published irresponsibly by the paper.
The ten statements referred to as false and untrue and published irresponsibly by the publication were set out as follows:-
Mr. Mohan indicated that the purpose of this letter was to make a formal demand upon the Defendant pursuant to s. 28 (2) (b) of the Defamation Act, 2009 to publish immediately an apology with equal prominence to the original defamation in terms to be agreed with the Plaintiff. It was noted that if such a satisfactory apology was not agreed to be published within a period of seven days from the date of the letter the Plaintiff’s solicitors had strict instructions to make an Application to the Circuit Court pursuant to s. 28 of the Act for Declaratory Order. The Defendant was further put on notice that in the event that such proceedings prove necessary an Application to seek a Correction Order under s. 30 and an Order in the nature of a Permanent Injunction under s. 33 of the Act would be proceeded with.
(1) “Rapist Larry Murphy had a ‘seedy’ and ‘weird’ relationship with the convicted child porn user while he was behind bars, Prison sources have revealed”.
(2) “But during his time in Arbour Hill Prison Murphy (45) was rumoured to have become ‘close’ to another twisted pervert, Barry Watters”.
(3) “Murphy, who was known as a loner behind bars, began a ‘bizarre and secretive’ relationship with Watters when he was jailed a year and a half ago”.
(4) “Prison sources have revealed Murphy would leave his cell and travel to a different wing at Arbour Hill Prison in order to have a shower alone with Watters at the same time every morning”.
(5) “’The pair of them were very odd’, said the Prison source”.
(6) “Larry went out of his way to use the same shower that Barry was using at the same time every time. He would leave his prison cell to go to another wing where Watters was showering everyday”.
(7) “The men were always alone in the showers”.
(8) “No-one ever caught them doing anything but was suggested that something might be going on”.
(9) “Both of them were obsessed with cleaning themselves and keeping themselves in good shape. Watters was known to shave every inch of his body in the shower everyday”.
(10) “The source said ‘There are seven men in the jail who would be considered ‘friends’ but weren’t necessarily close. While every other prisoner walked in a circle in the exercise yard, these men including Murphy walked side by side in a straight line up and down the yard. Since Larry has left the jail the men don’t seem as close anymore”.
The Defendant by letter of 17th September, 2010 replied to the Plaintiff’s Solicitors letter noting their letter of 10th September, 2010 and noting the formal demand made on behalf of the Plaintiff pursuant to s. 28 (2)(b) of the Defamation Act, 2009. The letter from Dillon Eustace Solicitors on behalf of the Defendant rejected the Plaintiff Solicitors assertion that that article of which the Plaintiff complained was defamatory of the Plaintiff. The letter went on to state “furthermore even if it could be considered defamatory, which is denied, in circumstances where your client is serving a sentence in relation to the possession of child pornography on two occasions it is extremely difficult to see how it could injure your client’s reputation among reasonable members of society further than he has done himself”.
The letter concluded by stating that the Defendant has no intention of publishing an apology sought by the Plaintiff or his Solicitors.
By letter of 27th September, 2010 to Messrs. Dillon Eustace Solicitors on behalf of the Defendant the Plaintiff’s Solicitors in that letter noted the Defendant’s refusal to publish an apology concerning the defamatory article published in the newspaper on September 5th 2010, concerning Mr. Watters. They further noted that Messrs. Dillon Eustace on behalf of the Defendant did not in their letter of September 17th 2010, at any stage assert the truth of the contents of the article with respect to defamatory assertions of a relationship between Mr. Watters and Mr. Larry Murphy at Arbour Hill Prison. It was again stressed in the letter of 27th September, 2010 to Messrs. Dillon Eustace on behalf of the Defendant that all such ascertains are entirely false. In the circumstances the Defendant’s Solicitors were again called on to address this aspect of Mr. Watters claim and acknowledge that the contents of the article were false and defamatory of him. It was further stated in the letter of 27th September, 2010 on behalf of the Plaintiff to Messrs. Dillon Eustace Solicitors for the Defendant that “if you are not in a position to assert the truth of your allegations we should be obliged for your positive averment to that effect. If you are not in a position to prove the truth of your allegations we should be obliged for your clear acknowledgment the contents of the article concerning Mr. Watters with respect to Mr. Murphy are untrue and false in their entirety”. It was also stated in the letter of 27th September, 2010 that “your failure to satisfactorily address this issue within seven days will result in the immediate issue of defamation proceedings by Mr. Watters. We await your reply”.
There was no reply and proceedings duly issued.
The Plaintiff in his affidavit sworn on 5th October, 2010 states on oath that he is lawfully serving two sentences of imprisonment imposed at Dundalk Circuit Criminal Court for offences contrary to s. 6 of the Child Trafficking and Pornography Act, 1998. On May 23rd 2008, the Plaintiff was sentenced to two years and six months imprisonment suspended on terms for a period of three years such sentence being imposed pursuant to a plea of guilty in respect of charges contrary to s. 6 of the Child Trafficking and Pornography Act, 1998. On April 25th 2009, the Plaintiff was arrested and subsequently charged with further offences under the Child Trafficking and Pornography Act s. 6 and on October 22nd 2009, the Plaintiff consented to the activation of the suspended sentence imposed in May 2008 and on May 19th 2010, he was sentenced again on a plea of guilty to a period of three years imprisonment such sentence to commence on April 25th 2009, in respect of further offences contrary to s. 6 of the Child Trafficking and Pornography Act, 1998.
As referred to by Mr. Mohan S.C. on his behalf the Plaintiff pleaded guilty to such offences in recognition of his wrong-doing and with the sincere intention of seeking rehabilitation in respect of addiction to the use of child pornography. While at liberty and before the imposition of the second sentence which was custodial the Plaintiff had sought to address the issue of offending contrary to the Child Pornography Act by
On September 5th 2010, the Defendant published an article in the Star on Sunday newspaper under the heading “Larry’s Secret Shower Buddy”. The Plaintiff says that the article proceeds to assert that he the Plaintiff was engaged in a “seedy” and “weird” relationship with one Larry Murphy. He identifies Larry Murphy as recently released from Arbour Hill Prison following serving a sentence for the abduction and rape of a woman in the year 2000, Mr. Murphy’s release was attended by intense media coverage. The Plaintiff says on oath that the article of September 5th 2010 by way of innuendo infers that he was engaged in an illicit homosexual relationship with the said Larry Murphy and he further deposes to the fact that all references in the article with respect to the Plaintiff being engaged in any relationship or knowing Larry Murphy are untrue and further says and believes that all references to any relationship as described in the said article are otherwise existing between the deponent and Larry Murphy are false and defamatory.
(1) attending for counselling at the Granada Institute
(2) submitted to psychiatric evaluation
(3) submitted to psychological evaluation and has since been remanded in custody in April 2009, sought treatment for his addiction via the Sex Offenders Programme at Arbour Hill.
He further deposes to the fact that he has at all times acknowledged his guilt with respect to offences committed contrary to s. 6 of the Child Trafficking and Pornography Act, 1998 and states in his affidavit that during the course of all criminal proceedings against him he did not seek to diminish the extent of his addiction to child pornography and has at all times sought to address this issue by way of therapy and engagement with those programmes offered by the Irish Prison Service with respect to sex offenders of which he is one. He further says that he has sought to address this issue of addiction at every possible opportunity and has acknowledged his guilt on two occasions before the Circuit Criminal Court.
In paragraph 7 of his affidavit the Plaintiff accepts that his own actions have injured his reputation in the eyes of reasonable members of society but that nonetheless the publication of an article in the Star on Sunday to the effect that he was engaged in a “seedy”, “weird” or any other type of relationship with Larry Murphy described in the article as “a rapist” and the “Beast of Baltinglass” further injures the Plaintiff’s reputation in the eyes of reasonable members of society and by innuendo implies that he is not sincere in seeking rehabilitation with respect to his addiction to child pornography and nor is he sincere in expressions of remorse with respect to his offending. The Plaintiff affirms in paragraph 7 of his grounding affidavit that he wishes to live the best life possible and is determined not to re-offend and seeks to be reintegrated with society in due course. He further says the publication of the article in the Star on Sunday makes it more difficult for him to reengage with society and undermines his efforts to rehabilitate himself into society. He makes the further point that the publication of the article does not just effect himself but in particular his family including his elderly parents and he states that he has been open and honest with his parents and family members with respect to his sexual orientation and relationships. He says publication of the article in the newspaper has injured his reputation further in the eyes of those reasonable members of society including his family members upon whom he relies to assist with his rehabilitation to lawful citizenship.
As a result of the publication of the article the Plaintiff says he was subject to adverse comments from fellow prisoners at Arbour Hill Prison to the effect that he was engaged in a sexual relationship with Larry Murphy. The Plaintiff states that he was so stressed as a result of the publication of the false and defamatory statements in the article that he considered suicide and because of his stress and anxiety had to be isolated within Arbour Hill Prison and put on suicide watch for a 72 hour period. He further deposes to the fact that all references in the article to a relationship between himself and Larry Murphy are false and defamatory. Among other matters the assertion that he was engaged in a “seedy” and “weird” relationship implies that he was engaged in an illicit homosexual relationship with Larry Murphy and he says that he was not engaged in any form of relationship, illicit, sexual or otherwise with the said Mr. Murphy. He further says that the article which draws an association between himself and Mr. Murphy who is described as a “rapist” and “Beast of Baltinglass” and a person guilty of the brutal abduction, rape and attempted murder of a woman in 2000, suggests by innuendo and/ or implication that he condones such behaviour such suggestion being false and defamatory of him. He further says the article suggests he was engaged in “a bizarre and secretive” relationship with Mr. Murphy. He says he has not been engaged in any such “bizarre and secretive” or any other type of relationship with Larry Murphy and deposes to the fact that such suggestion has undermined his efforts to lawfully serve his sentence and to maintain open and honest relationships with his own family members concerning his behaviour at Arbour Hill Prison.
He further deposes to the fact that the article suggests that Mr. Murphy is a psychopath with whom he showered every day. He says that such allegations are untrue and further believes that the article states that “no-one ever caught them doing anything but it was suggested that there might be something going on” implies that he and Mr. Murphy were engaged in illicit sexual activity at Arbour Hill Prison such suggestion being false and defamatory of him. The article further suggests that he is one of a group of “friends” at Arbour Hill Prison and the Plaintiff affirms that such suggestions are both false and defamatory of him in that he is not part of any such group and has at all times sought lawfully to serve his sentence at Arbour Hill Prison.
Paragraph 13 of the Plaintiff’s grounding affidavit contains a most important admission and realisation by the Plaintiff that he does not enjoy a reputation of good character among reasonable members of society with respect to his conviction for possession of child pornography contrary to s. 6 of the Child Trafficking and Pornography Act, 1998. This absence of a reputation of good character is essentially what goes to the heart of this application for a declaratory order under the Defamation Act, 2009. Despite his acceptance of absence of reputation of good character among reasonable members of society with respect to his convictions for possession of child pornography the Plaintiff nonetheless says that he has at all times sought to address his criminal offending by pleading guilty to the charges brought in respect of those offences and has sought to address his addiction to child pornography by way of therapy both psychiatric and psychological while at large and while in custody in the prison system. He says the publication of untrue and false allegations concerning him and any relationship with the said Mr. Murphy further injures his already damaged reputation among reasonable members of society and further injures that already damaged reputation with respect to reasonable members of society and particular his family members who have supported him and with whom he has sought to be truthful and honest with respect to his relationships with other people and his behaviour in prison.
Concluding his affidavit the Plaintiff states that his Solicitors have sought an apology on his behalf from the Defendant but believes that such apology is not forthcoming in circumstances where the newspaper has not asserted the truth of the allegations made but rather relied on the fact that his impaired reputation cannot be injured further than he has already impaired it by his own actions. Mr. Mohan S.C. on behalf of the Plaintiff has urged on me the view that the Defendant’s position in that regard takes no account whatever of the false nature of the allegations published by it and the effect such a publication has had on the Plaintiff’s attempts to reintegrate with society.
Mr. Mohan S.C. on behalf of the Plaintiff puts great weight on the reply dated September 17th 2010, from the Solicitors for the Defendant rejecting the Plaintiff’s assertion that the article published by it was defamatory of the Plaintiff that letter of September 17th 2010, asserts that even if the article could be considered defamatory, which is denied, that it was difficult to see how the article could injure the Plaintiff’s reputation among reasonable members of society further than he had himself done in circumstances where he was serving a sentence in relation to child pornography on two occasions. Mr. Mohan argues strongly that while the letter asserts that the Plaintiff cannot be defamed at no stage does it assert the truth of the content of the article with respect to its allegations of a relationship between Mr. Watters and Larry Murphy. He also urges me to give great weight to a letter dated September 13th 2010, from the Governor of Arbour Hill Prison to the Plaintiff Solicitors confirming that there is no evidence or indication that any prison staff or support agencies were involved in the provision of information to the Star on Sunday newspaper. This letter from the Prison Governor at Arbour Hill is exhibited in the grounding affidavit of Mr. MacGuill’s Solicitor on behalf of the Plaintiff sworn on 5th October, 2010. This letter of September 13th, 2010 from the Governor of Arbour Hill Prison is an important letter and having reviewed the article and having consulted with appropriate prison staff the Governor is satisfied that there is absolutely no truth to the claims made in respect of the Plaintiff by the Star on Sunday with regard to the Plaintiff’s conduct within Arbour Hill Prison. This letter of September 13th, 2010 from the Governor of Arbour Hill Prison exhibited in the affidavit of James MacGuill sworn on 5th October, 2010 is important and as such an important exhibit is worthy of quotation in full in that it would appear to me to be capable of corroborating the affirmations on oath in his affidavit of the Plaintiff.
The terms of this letter from the Prison Governor of Arbour Hill Prison to Mr. James MacGuill, Solicitor for the Plaintiff of 13th September, 2010 is as follows:-
The affidavit of Paul Cooke, Managing Director of the Defendant sworn on 15th day of October, 2010 in reply to the grounding affidavit of Mr. MacGuill and verifying affidavit of the Plaintiff of 5th October, 2010 deals in considerable detail in paragraphs 5 and 6 therein with the background facts and details of the offences to which the Plaintiff pleaded guilty and incurred a reactivated prison sentence of 3 years. Mr. Cooke deposes to the fact in paragraph 6 of his affidavit that as a result of the matters to which the Plaintiff pleaded guilty he was described in Court as effectively “a social pariah”. Paragraph 7 of Mr. Cooke’s affidavit further deposes to the fact that in regard to paragraphs 5 and 6 of his affidavit he refers to the court report of Elaine Keogh, Court Reporter and the following publications/online versions of the publications
“Dear Mr. MacGuill I am to acknowledge receipt of yours of 9th instant. We can appreciate your client’s concerns at purport the article referred to therein and in particular the numerous references to ‘prison sources’ this term which is frequently used in the written media where no attributable source can be quoted is in effect meaningless insofar as it could refer to prisoners, prisoner’s family members, prison personnel other prison employees, visitors and numerous other agencies. In this specific incident we suspect that it was used to disguise the complete absence of any credible source. Notwithstanding same it remains the position of the management of Arbour Hill Prison and indeed of the Irish Prison Service generally that unauthorised contact with any media format is viewed as a serious breach of ‘terms of employment’ as defined in the official secrets act. In this specific incident we have absolutely no evidence, or indication, that any of our staff or support agencies were in any way involved in the provision of information to the Star newspaper.
Having reviewed the said article and having consulted with the appropriate staff members I am quite satisfied that there is absolutely no truth to the claims made in the Star on Sunday on 5/9/10 apropos Barry Watters conduct within Arbour Hill Prison. In conclusion might I reiterate my concern that the targeting of vulnerable prisoners in custody in calculated, baseless, malicious and false articles appearing in newspapers is a gross abuse of position and is frequently a major cause of concern not only to prisoners themselves but also to their extended family for whom such falsity is an additional burden in what may be an already stressful situation.
All of which references and publications and online versions of the publications which are exhibited in his affidavit. It is further stated in paragraph 8 of Mr. Cooke’s replying affidavit that as appears from these publications the Plaintiff also has other convictions numbering 26 in total including 4 counts of criminal damage.
(1) The Argos (Ireland) October 28th, 2009
(2) The Argos (Ireland) November 18th, 2009
(3) The Argos (Ireland) January 20th, 2010
(4) The Irish Times January 27th, 2010
(5) The Argos (Ireland) May 12th, 2010
(6) The Argos (Ireland) May 26th, 2010
In a further affirming affidavit of 18th October, 2010 Mr. MacGuill, Solicitor for the Plaintiff replied to the affidavit of the Defendant sworn on 15th October, 2010 and in paragraph 3 thereof says that the matters to which the Plaintiff pleaded guilty before the Circuit Criminal Court are accurately set out at paragraph 3 of the affidavit sworn by the Plaintiff in these proceedings. Mr. MacGuill says that other than those offences described at paragraph 3 of his (Mr. MacGuill’s) affidavit affirmed on 5th October, 2010 the Plaintiff has no other criminal convictions nor has he appeared before the Criminal Courts on any other matter save the convictions in respect of possession of child pornography.
At paragraph 4 of his supplemental affidavit affirmed on 18th October, 2010 Mr. MacGuill on behalf of the Plaintiff says and believes that the Barry Watters referred to at paragraph 8 of the Defendant’s affidavit is another person of the same name who resides at a wholly different address. He says and believes that the information exhibited in the Defendant’s affidavit clearly refers to two different people, one being Barry Watters, 33 years old of Hazelwood Avenue, Bay Estate, Dundalk (the Plaintiff) and the other being one Barry Watters, 36 years old of 2 Cashlainn, Heynestown, Dundalk and he says and believes that the most cursory examination of the material exhibited by or on behalf of the Defendant newspaper would reveal that it refers to two different people of the same name. With respect to the previous convictions of the Plaintiff he refers to details of convictions recorded in the criminal registry against the Plaintiff as furnished by An Garda Síochána in the criminal proceedings brought against him and he further says and believes that the record shows that the Plaintiff has no convictions recorded against him other than those for which he is now lawfully serving two sentences of imprisonment and these are exhibited in the affirming supplemental affidavit of Mr. MacGuill affirmed on 18th October, 2010. In paragraph 7 of his supplemental affidavit Mr. MacGuill affirms that the Defendant’s failure to verify the facts upon which it relies in its defence aggravates the defamatory nature of the false statements previously published by it in respect of the Plaintiff and further it says and believes that the affidavit fails to aver to the truth of the content of the statements published by the Defendant in respect of the Plaintiff on September 5th 2010, in its newspaper and in this regard appears to accept that the statements concerning the Plaintiff with regard to being engaged in a relationship with Mr. Larry Murphy at Arbour Hill Prison are false and untrue.
Mr. Mohan S.C. on behalf of the Plaintiff takes particular exception to the extent of detail and minutia of the Plaintiff’s 2 criminal convictions before the Circuit Criminal Court and argues that the depth of such minutia in regard to detail given in the replying affidavit of Mr. Cooke on behalf of the Defendant offends against the rule in Finbarr Hill and Cork Examiner Publications Limited, a judgment of the Supreme Court delivered by Mr. Justice Francis Murphy on 14th November, 2001. Having said this I do accept that both Mr. Hugh Mohan S.C. for the Plaintiff and Mr. Eoin McCullough S.C. for the Defendant accepted that the judgment of Cave J. in Scott v. Samson (1882) 8 Queens Bench Division at 491, correctly stated the law in relation to general evidence of bad reputation when he said:-
Both Counsel in fact referred me to the problem of distinguishing between evidence of general bad reputation and of specific conduct on which such reputation might be based and reference was made to Judge Denning’s remarks in the leading case of Plato Films Limited v. Speidel 1961 1 Appeal Cases at 1138. As the Supreme Court pointed out in Hill and Cork Examiner Publications Limited specific acts of misconduct are not admissible as proof of general bad reputation. The Hill judgment indicates that the primary reason for that restriction is that the allowance of such evidence would lead to enumerable subsidiary trials of collateral issues concerning the reputation of the Plaintiff. It is therefore clear that evidence of specific previous convictions is an exception to the rule. As Mr. Justice Murphy said at p. 7 of his judgment one justification for that exception is the clarity and certainty with which a conviction can be established. In his judgment Mr. Justice Murphy referred to the learned trial judges’ summary of the position as follows:-
“Damage however which he the Plaintiff has sustained must depend almost entirely on the estimation in which he was previously held. He complained of an injury to his reputation and seeks to recover damage for that injury; and it seems most material that the jury who have to award those damages should know, if the fact is so, that he is a man of no reputation. To deny this would as is observed in Starkie, Evidence, be to decide that a man of the worst character is entitled to the same measure of damages with one of unsullied and unblemished reputation”.
It seems to me therefore that the criticism by Mr. Mohan on behalf of the Plaintiff of the minutia of the particular offences in respect of which the Plaintiff stands convicted and detailed so fully in the replying affidavit of Mr. Cooke is well made. Mr. Mohan’s main objection however with the replying affidavit of the Defendant is that it did not answer the question of the falsity of information published but sought to “demonise” his client with further false information in such a way that they could not reasonably be said to have sought to stand over the publication in any real sense or at all. In essence Mr. Mohan said that the Defendant claimed the Plaintiff had no reputation at all because of his criminal convictions and so could not in effect be defamed. The question I must therefore examine is had the Plaintiff no reputation at all or a reputation so worthless by his incurring criminal convictions under the Child Trafficking and Pornography Act, 1998 that he is a person who because of these convictions lacks the capacity to be defamed by the publication of an article alleging a sexual relationship between him and a fellow prisoner of great notoriety in Arbour Hill Prison. Mr. Mohan accepts that his client because of his pleas of guilty to two separate set of offences under the 1998 Act has indeed suffered a huge diminution in his reputation but he argues that this actual loss of reputation does not and can not in the particular circumstances of this particular case mean that his reputation is indelibly lost forever or totally destroyed particularly because of the fact that he pleaded guilty to these offences voluntarily and accepted his guilt. Further he showed remorse and contrition and sought to come to terms with his addiction to child pornography by engaging with psychiatric and psychological services whilst at liberty and seeking whilst in custody a place on the treatment programme for sexual offenders in Arbour Hill. All of this and in particular his openness with his family and confession of his addiction and criminality indicates genuine responsibility for his crimes and indicates a person capable of redeeming whatever residue is left of his reputation by his acceptance of his crimes and his genuine attempts to come to terms with his addiction. As to the question is the Plaintiff’s reputation any worse as a result of the publication Mr. Mohan effectively argues that whatever little residue of reputation remains to the Plaintiff has been deeply damaged by the inaccurate, false and defamatory publication of the Defendant.
“He (the Plaintiff) has an admitted bad reputation relating to the offence of which he was serving a sentence at the time. That is a serious crime which the jury will be told about but I do not think it would be proper to go into the minutia of that particular crime. It would mean investigating the entire of it and it would be bringing the jury down a cul de sac which would not really in the end help them very much. At the end of the day they know he has been convicted of a serious crime that is all they require to know. I would certainly exclude all attempts to investigate the details of that particular crime”.
Mr. Eoin McCullough, S.C. on behalf of the Defendant said that the facts of the case were essentially not in dispute. The Plaintiff had been convicted of possessing child pornography and received a suspended sentence. Less than a year later when he was seen on a bus with pornographic images on a camera and his home was raided by Gardaí who found 81 images of child pornography. He had been described at sentencing in the Circuit Criminal Court as a “social pariah” and sent to prison for a total of 3 years. These were serious offences counsel submitted even on the scale of sexual offences a submission with which I fully concur. The key question for consideration was therefore whether people would think any worse of the Plaintiff who had said the newspaper was claiming he was some sort of pervert which Mr. McCullough submitted he was. He submitted it was not defamatory in this day and age to say a person was engaged in a lawful sexual activity with another adult and asked the question “Is it defamatory of anyone to say they were engaged in a homosexual relationship?”. In this regard Mr. McCullough relied heavily on the decision of the Supreme Court of New South Wales, Law Division case of Rivkin v. Amalgamated Television Services PTY Limited (2001) NSWSC at 432. This was a defamation action where amongst other issues it was alleged that the Plaintiff had engaged in homosexual intercourse with one Gordon Wood where the Defendant argued that such imputation lacked capacity to defame the Plaintiff. By way of comparative analysis with the facts of that case Mr. McCullough has suggested that for reasons which I will deal with shortly such imputation of a homosexual relationship between the Plaintiff in this case and Mr. Murphy is incapable of being defamatory of the Plaintiff. As in the Rivkin case Mr. McCullough has submitted that in order for it to be defamatory an imputation must tend to lower the Plaintiff in the estimate of “right thinking members of society generally”. To publish an ascertion which would disparage an individual in the eyes of a section of the community was not sufficient unless the views of that group happen to correspond with those of right thinking members of society generally. As was argued in the Rivkin case Mr. McCullough acknowledges that until relatively recent times the charge that a man had had homosexual intercourse with another would, without more, have been capable of being defamatory of him however he argued that there had now been a change in the social and moral standards of the community such that, as a matter of law, it could not be said that right thinking members of society generally would hold the mere fact of homosexual intercourse lowered a man in their estimate. For comparative purposes Mr. McCullough drew my attention to a framework of legislation at the state and federal level in the Australian case (at paragraph 19 of the judgment) which reflected the change in community attitudes on the topic of homosexuality. In that section of the judgment it is noted that the former proscription of homosexual conduct between consenting male adults had been abolished by amendment to the Crimes Act, 1900 introduced in 1984. Further the provisions of the Anti-Discrimination Act, 1977 render it unlawful to discriminate against a person on the grounds of homosexuality in a wide range of context including employment, the provision of goods and services and education. The Anti-Discrimination (Homosexual Vilification) Amendment Act, 1993 inserted a provision into the Act making it unlawful by a public act to insight hatred towards, serious contempt for or severe ridicule of a person on the grounds of homosexuality. The Property (Relationship) Legislation Amendment Act, 1999 which amended the de facto Relations Act, 1984 (now the Property Relations Act, 1984) broadens the definition of “de facto relationship” so as to include homosexual relationships thus providing for Court Orders adjusting property rights as between homosexual couples upon determination of a domestic relationship. Mr. McCullough in his submission contrasted the position in Ireland under the terms of (a) The Equality Act, 2000 and in particular s. 3, The Civil Partnership Act and that the former Proscription of Homosexual Conduct between consenting male adults has now been abolished by statute. Mr. McCullough submitted that such a framework spoke strongly of the change in recent years in social and moral values concerning homosexuality. In his submission he argued it is no longer open to contend that the shared social and moral standards with which the ordinary reasonable members of the community is imbued include that of holding homosexual men (or men who engage in homosexual sex) in lesser regard on account of that fact alone. He however agrees that this is not to say that the assertion that a man is a homosexual (or that he has engaged in homosexual activity) may not give rise in certain instances to a defamatory imputation where grounds of hypocrisy may be argued. Given the force of Mr. McCullough’s submission can it therefore be argued that the imputation or innuendo arising complained of in the article as published can be capable of being defamatory of the Plaintiff? In answer to my question that the allegations are of a sensational character the alleged relationship is with a named person described as “the beast of Baltinglass” Mr. McCullough says that it is of no matter whether the alleged relationship was with a person with a good or a bad reputation. Mr. McCullough essentially asks is it defamatory of this Plaintiff to say he has engaged in sexual relations consensually with another prisoner whilst in lawful custody? In my judgment to answer that question baldly in terms of the Rivkin arguments are to determine the issue wholly without context and evidence without context can be meaningless. In this case it is not simply the allegation of a consensual homosexual relationship with another prisoner which is complained of: it is rather in my view the context in which such allegations are made. The article complained of is presented as an investigative report by a journalist who is described as “Investigations Correspondent”. The allegations are of a sensational character. In short the article purporting to be an exercise in investigative journalism seems to me capable of conveying the imputations pleaded by the Plaintiff. In this regard I take into account the observations of Lord Devlin in Lewis v. The Daily Telegraph Limited (1964) Appeal Cases 234 at 285 to which I have been referred by a Mr. McCullough.
Mr. McCullough on behalf of the Defendant has argued cogently that Defamation is not necessarily about particular facts and whether they are precisely true. The question becomes; is the reputation of the Plaintiff any worse as a result of the publication complained of? Mr. McCullough has rejected the assertion that the article of which the Plaintiff complains is defamatory or indeed capable of being defamatory and argues furthermore even if it could be considered defamatory (which is denied) in circumstances where the Plaintiff is serving a sentence in relation to the possession of child pornography it is extremely difficult to see how the Plaintiff’s reputation among reasonable members of society could be injured any further than he has already done to himself. Is the Plaintiff’s reputation any worse as a result of the publication by the Defendant of the article complained of published on September 5th 2010? In this regard Mr. McCullough has referred to the case of Grobbelaar v. The News Group Newspapers Limited (2002) U.K. H.L. at p. 40 and has referred me to Lord Bingham’s statement at paragraph 24 of the judgment in which he states that “the tort of defamation protects those whose reputations have been unlawfully injured. It affords little or no protection to those who have, or deserve to have, no reputation deserving of legal protection”. Mr. McCullough’s contention is strongly for the proposition that the Plaintiff is a man who because of his convictions on two occasions for child pornography is a man effectively of no reputation and undeserving of any legal protection. To argue that the Plaintiff, because of his two previous convictions under the Child Trafficking and Pornography Act, 1998 is beyond the pale of reputation is, in a material sense, to ignore certain relevant considerations. These in my judgment are;
“It is the broad impression conveyed by the libel that has to be considered and not the meaning of each word under analysis, a man who wants to talk at large about smoke may have to pick his words very carefully if he wants to exclude the suggestion that there is also a fire; but it can be done. One always gets back to the fundamental question; what is the meaning of the words conveyed to the ordinary man- you cannot make a rule about that. They can convey a meaning of suspicion short of guilt; but loose talk about suspicion can very easily convey the impression that it is a suspicion that is well founded”.
Although he has suffered a substantial loss of reputation the Plaintiff cannot reasonably be said to be in the same category as a convicted prisoner who refuses to accept his guilt, continues to deny all offences and do absolutely nothing but serve a sentence under protest of innocence with no remorse, contrition, acceptance of wrong doing or any intention to rehabilitate or not re-offend. There is therefore in my view in this Plaintiff a residual “reputation” capable of being damaged by the nature of the allegations suggested in the article of 5th September, 2010. He has because of the manner in which he has met the case against him in the Circuit Criminal Court a residue of reputation that is capable of being damaged and fits into a category of prisoner who is different in degree, if not in kind, to those who, in similar circumstances, simply deny all wrongdoing despite their conviction.
(1) The Plaintiff voluntarily admitted guilt to these very serious offences in circumstances where he expressed remorse and contrition and confessed to a chronic addiction to child pornography.
(2) He made himself available, whilst at liberty, for psychiatric evaluation and psychological assessment.
(3) He sought in custody a place on the Arbour Hill Sexual Offenders Treatment Programme.
(4) He earnestly wishes to be rehabilitated into society and citizenship.
(5) He has faced his family and been honest about his addiction to such pornographic material.
(6) He seeks to rehabilitate himself and make amends for his crimes by serving his lawful sentence.
(7) He did not oppose in any sense the activation of his already suspended sentence.
(8) He has sought in particular with his family members who have supported him to be truthful and honest with respect to his relationships with other people and his behaviour in prison.
Admission of guilt mandates mitigation of sentence. The gravity of the offence must be contrasted with the real and personal circumstances of the offender (see DPP.v M, [Denham J]. I.R.L.M. 1994). If this is so as a matter of sentencing law and policy so too it ought to be for reputation and loss of reputation in defined and particular circumstances.
Having considered carefully the learned submissions by Mr. Mohan on behalf of the Applicant and Mr. McCullough on behalf of the Respondent, the affidavits filed in the within application (together with all exhibits therein contained) I am satisfied for the reasons set out above, that the Applicant is entitled to a declaratory order under s. 28 (1) of The Defamation Act, 2009.
Where, in a defamation action, there is a finding that the statement in respect of which the action was brought was defamatory and the Defendant has no defence to the action, the Court may, upon the application of the Plaintiff, make an order (and this Act referred to as a “Correction Order”) directing the Defendant to publish a correction of the defamatory statement. Whilst such a correction order under s. 30 subsection 1 would logically follow and does in my judgment, Mr. McCullough has earlier in the course of his submissions pointed out how in the 11th edition of Gatley on Libel and Slander at p. 1083 it was considered undesirable that the Court should take an active role in formulating the terms of a correction and apology. The Act provides for the parties to agree the content of the correction and apology as well as the time, manner, form and place of publication. So where there is defamation in a newspaper for which the claimant is granted summary relief, he has submitted it is for the parties to agree the wording of the correction and apology and also the issue of the newspaper and the appropriate position, page and place where the correction and apology is to appear. If the parties cannot reach agreement on the content of the correction of the apology then the court has power to direct the publication of a summary of the Court’s judgment (by which summary relief was granted). I would agree with Mr. McCullough’s suggestion in this regard and would hope that the parties agree the wording of the correction and apology required. The applicant is further entitled pursuant to the Defamation Act, 2009 s. 33 thereof to an Order prohibiting the Defendant from publishing or further publishing the false and defamatory statements in respect of which the within application was made.