Denis O’Brien can feel the pain of the Isle of Man 19. Both he and the 19 individuals had their privacy breached. In Mr O’Brien’s case, the basis for breaching the privacy of his banking affairs was due to the public interest. Yesterday, the Supreme Court ruled that it cannot interfere with an Oireachtas decision that effectively rubber-stamped the breach of Mr O’Brien’s privacy under Dáil privilege in 2015.
Mr O’Brien had sought recourse in the courts to right what he saw as a wrong. And now the courts, including the highest in the land, have responded that he was wrong to think that his rights were breached.
Yet, arguably, his action has performed a public service in reasserting the rights of parliament and the separation of powers.
There are some similarities and some differences in how and why the privacy of Mr O’Brien and that of the Isle Of Man 19 were breached.
The Isle Of Man 19 are also expected to go to court to right what they see as a wrong perpetrated against them. These individuals all had their private data removed from email servers in Independent News And Media and taken to the Isle of Man where this data was “interrogated”.
Unlike Mr O’Brien’s affairs, this breach of privacy did not find its way onto the floor of the national parliament. Whatever the basis for the breach — INM’s former chairman Leslie Buckley has curiously claimed that it was connected with “cost-cutting” — it is highly unlikely that it was in the public interest. Far more likely it was in the private interests of somebody, somewhere.
The private material at issue in both Mr O’Brien’s case and that of the 19 was highly confidential. As a billionaire with business interests spanning the globe, Mr O’Brien’s banking data has a serious commercial imperative.
Yet two TDs, Sinn Féin’s Pearse Doherty and Social Democrat Catherine Murphy, felt that some of this banking data should be made public in the context of a raging controversy over the former Anglo Irish Bank.
Yesterday’s ruling vindicated the politicians’ actions.
Much of the 19’s data was also highly confidential. Some of the 19 were journalists, and the data interrogated may well have concerned communications with sources in various centres of power. This kind of stuff goes to the heart of the media’s function in a democracy. There is absolutely no evidence that Mr O’Brien, notwithstanding his shareholding in INM, had any knowledge of the removal of the data.
Not just that, but, as a media owner, he would be well aware of the importance of the confidentiality of sources for journalists. Separately, one might well posit the theory that, as a man who obviously values privacy highly, he would be horrified at what was done.
We don’t know what his opinion on the matter is, though, because he has not commented on it since it came into the public domain early last year. All we do know, through the Office of the Director of Corporate Enforcement, is that a company controlled by Mr O’Brien, Blaydon Ltd, paid for the interrogation.
Again, there is no evidence that a man of Mr O’Brien’s vast business interests would have been aware that a company controlled by him would have paid for the interrogation of private
data originating in another company in which he was the biggest shareholder. These are matters which will be delved into in some detail by the High Court inspectors who are examining how INM did its business in a number of respects over the last five years.
In the event of the Isle Of Man 19 following Mr O’Brien’s lead and seeking recourse to the courts, there will be some differences in their respective approaches.
Mr O’Brien was looking to assert what he saw as his rights as a citizen in a democracy. His action was based on asserting a principle.
The 19, all of whom are undoubtedly people of high principle, will more likely be interested in receiving monetary compensation rather than a legal declaration. If they can prove their case, they will be entitled to be well-compensated for a breach of their privacy. In such an eventuality, the money will have to be paid out by INM.
It would be something of a bitter irony for Mr O’Brien if, as the main shareholder, he had to stump up for a privacy breach on a court ruling, having experienced, in his own case, a ruling that his privacy was legitimately breached in parliament.