Defamation case: Plaintiff ‘one of least deserving’

‘Sunday World’ lawyer criticises ex-footballer who featured in articles as ‘the biggest swinger in town’

A lawyer for the Sunday World yesterday described former Kildare footballer Brian ‘Spike’ Nolan as one of the least deserving cases to sue for defamation and breach of privacy over reports describing him as “the biggest swinger in town”.

Mr Nolan, aged 49, of Goatstown, Dublin, brought his case before the High Court sitting in Cork, where the closing legal submissions were made yesterday.

Mr Justice Tony O’Connor reserved judgment.

Rossa Fanning, for the Sunday World, said of the submissions by the plaintiff’s counsel, Jim O’Callaghan, “What he is essentially asking the court to do is to take leave of its common sense and enrich one of the least deserving plaintiffs to come before the courts in this type of case.

"He is a man who threatened his girlfriend he would give her name to the newspaper, but he comes before the court with a straight face seeking damages for privacy.”

Mr Fanning said, “The plaintiff, on any version of events, consented to photos being taken. His complaint is not that the pictures were seen by strangers but that they were seen by too many strangers. That is a complaint that is not known to law.

“Because it happened in front of 26 strangers (at a swingers party), he forfeited any right to privacy one might ordinarily have… The comparison with a person in a monogamous relationship in a bedroom with the curtains closed could not be starker.”

Mr O’Callaghan, for Mr Nolan, argued that the articles carried a number of meanings, including that Mr Nolan organised swingers parties, that he organised them for financial gain, and that he was involved in the sex trade — thus he was entitled to damages for defamation.

He said the first article stated that Mr Nolan organised swingers parties, implying he made financial gain from them. The second article appeared in a feature on page 12 which included articles on prostitution and thus linked him to the sex trade and making financial gain, said Mr O’Callaghan.

He was not saying it was defamatory to say that Mr Nolan attended swingers parties but that it was defamatory to say that he organised them. The newspaper never gave him an opportunity to respond to that allegation as it was never put to him by reporter Niall Donald, said counsel.

He said Mr Nolan was also suing on the grounds of breach of privacy — the publication of photographs or Mr Nolan beside three woman, showing almost bare buttocks in lingerie, was a clear breach of his privacy as the photos were taken at a private party and he did not consent to their publication.

The courts had established a right to be left alone and there was case law from the Mosley case in the UK, which found individuals had a right to privacy in relation to their sexual activities once it was among consenting adults, as was clearly the case in this instance, he said.

Mr O’Callaghan said the fact the Sunday World had seen fit to pixellate the faces of the other people in the photo was a clear recognition that it was breaching their privacy and yet they were perfectly happy to publish Mr Nolan’s photograph.

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