Powerful case for reform of libel laws

There was a shootout before Nicky Kehoe was arrested. It all happened at the home of wealthy businessman Galan Weston in Co Wicklow on August 7, 1983.

Powerful case for reform of libel laws

Kehoe and six IRA associates had arrived at the Weston home intent on kidnapping him. But the gardaí had been tipped off and were waiting.

Thankfully, no gardaí were killed during the shoot-out. Kehoe and his comrades were apprehended. It wasn’t a youthful frolic for the 29-year-old gunman from Cabra on Dublin’s northside.

He had already served a sentence on explosive charges. Conviction on the Weston charges brought him a sentence of 12 years. He was released in 1992.

Last Monday, a jury awarded Mr Kehoe €10,000 in a libel action in which he said the reputation he had built in 26 years since coming out of prison had been destroyed in “one swipe” in a programme broadcast by RTÉ in 2015.

The case had many strange features. The jury was perfectly entitled to come to its decision based on the evidence. Equally, Mr Kehoe was perfectly entitled to legally assert his good reputation, notwithstanding his history as a gunman. But the ultimate outcome will in all

likelihood have suited nobody, apart from the lawyers.

Mr Kehoe claimed his reputation was destroyed when former Labour TD Joe Costello said on RTÉ Radio in October 2015 that he “is” the chief of staff of the IRA, a claim that had no factual basis. Mr Kehoe is a former Sinn Féin councillor who now works as a manager for the party.

Mr Costello was debating live on the Saturday with Claire Byrne programme. The claim was attacked and dismissed on the programme by Sinn Féin TD Eoin Ó Brion (who was then a councillor).

In the space of three minutes, Costello withdrew the claim and said Mr Kehoe “was” a senior IRA figure.

Mr Kehoe claimed Ms Byrne should have shut down the debate once his name was mentioned. His name was first introduced by Mr Ó Brion after Mr Costello referenced him. The only party sued was RTÉ.

In the first result of its kind, the jury decided RTÉ was 35% responsible and Joe Costello 65% for defaming Mr Kehoe. But Mr Costello was not party to the proceedings — Nicky Kehoe had for some reason declined to sue him — so the ultimate outcome was an award of €3,500 against RTÉ.

The costs of the action could easily be one hundred times the award and will be decided next week. If precedent is anything to go by, Mr Kehoe may have to pay a large portion of the costs, so he’s highly unlikely to receive the award he won for the defamation of his reputation.

Two aspects of the evidence stand out. Three witnesses drawn from the Cabra area, where Mr Kehoe is highly regarded for his work in the community and the GAA, gave evidence. All said they had heard the broadcast and were put out by it. When asked, all also declared that it made them think no less of Mr Kehoe whom they held in much esteem.

In that context, it is difficult to detect how exactly Mr Kehoe’s reputation was damaged by the broadcast.

During his own evidence, he was asked whether he was ashamed of his IRA past.

“I would be in a context,” he replied. He also said: “I served my time and came out changed. The reputation I have now is

different from what I had, but I had to work hard to get that reputation.”

His shame is curious. He is employed by Sinn Féin. The party has never distanced itself from the campaign of violence conducted by its former paramilitary wing.

Martin McGuinness’s funeral was told that he was proud of his IRA past. At Mary Lou McDonald’s recent elevation to president of the party, she issued the old IRA war-cry “Tiocfaidh Ar La”.

She said her intention was to say that the day of social justice will come, but others have interpreted it as a reassurance to the former IRA element that she won’t stray from the narrative that the IRA’s existence and actions were justified. Yet Nicky Kehoe, the manager of Sinn Féin’s councillors in the Dublin area, is ashamed of his past involvement with the IRA.

As the award was so low, the pursuit of the protection — or he might say restoration — of his reputation will have been a costly exercise. Righting what he perceived to be a wrong could literally become a financial albatross for the rest of his life.

Financially, RTÉ could have settled with Mr Kehoe long before the case arrived at court. It would certainly have been the prudent route. For many other media outlets, which don’t have RTÉ’s financial muscle, it would have been the only route. For that reason, libel trials are a rarity these days.

Instead, media outlets cave in long before arrival in court because at a time when the industry is financially precarious, the cost of defending the duty “to speak truth to power” — as the media’s function is characterised — is simply out of reach.

Defamation laws in this country are among the most restrictive in the western world. That suits politicians and those who fund politics.

Despite platitudes about the importance of a free media, the reality is that a tight leash on the media’s capacity to analyse, debate, investigate and report means less grief for those who exercise power. One element of the defamation culture desperately in need of reform is the use of jury trials in actions.

“They are unpredictable, time-consuming, costly and of little benefit to plaintiff and defendant alike,” the newspaper industry’s body Newsbrand reported in a submission last year.

Maybe that’s exactly why they are retained for defamation actions by successive governments while juries have been abolished in nearly all civil actions.

None of this is ever likely to ever become an election issues. Even those who rant about widespread corruption rarely make reference to defamation laws. And the average Joe and Josephine has more immediate issues to be getting on with.

But it matters because without a properly functioning media, democracy is little more than a sham.

Thomas Jefferson, one of the founders of American democracy once noted that “If it were left to me to decide whether we should have a government without newspapers or newspapers without a government, I should not hesitate a moment to prefer the latter”.

Or look at it this way. Can you imagine what Donald Trump would give to have Ireland’s defamation laws? Much of the examination of his corrosion of democracy would have been shut down.

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