Introduction
On 13 June 2024, Mr Justice Rory Mulcahy delivered the High Court decision in Enoch Burke's defamation case against Mediahuis who successfully defended the claim for defamation. The judgment was unusual in that it found sections of the article to be untrue yet found it did not tend to injure Mr Burke's reputation and was therefore not defamatory under the Defamation Act 2009.
Background
On 9 October 2022, an article was published in print and online in the Sunday Independent Newspaper. The printed article was entitled - "Burke moved to new jail cell as he is 'annoying other prisoners'". The online edition was labelled - "Enoch Burke moved to new jail cell for his own safety as he is 'annoying other prisoners'". Mr Burke claimed the first seven paragraphs of the article were 'entirely baseless and utterly without foundation' and that he had suffered serious loss and damage to his good name and reputation. The article was published along with a photograph of the plaintiff and described the proceedings leading up to his suspension from Wilson's Hospital School in County Westmeath. The defendants admitted that portions of the article were inaccurate but contested that the words in the article were not capable of being defamatory or that they injured the plaintiff's reputation in the eyes of reasonable members of society. The defending parties also relied on the defence of Fair and Reasonable Publication under Section 26 of the Defamation Act 2009.
The day following the publication of the article, Mr Burke's mother called and emailed the newspaper's editor Alan English alleging the article was defamatory. The email required the newspaper to remove the article, publish a full retraction and apology, to not republish the article and to pay damages for the injury caused to the plaintiff's reputation, interference with his privacy and with the administration of justice. The editor replied within the hour and stated that the disputed facts required investigation and, if the article was found to be factually inaccurate, it would be corrected. Elements of the article were confirmed to be untrue.
High Court proceedings were issued on 14 October 2022. On 1 January 2023, the Sunday Independent published a correction and an apology to Enoch Burke for the error.
The Trial
The trial ran for four days at the end of April and the start of May 2024 where the plaintiff represented himself. In addressing some preliminary issues, Judge Mulcahy clarified that any evidence postdating the date of publication of the article was potentially admissible for the purpose of considering the question of damages. In assessing if the article tended to injure the plaintiff's reputation however, the relevant date for assessment was the date the article was first published.
Mr Burke accepted that he was a 'public figure' at the time the article was published. He submitted that the article may impact his professional career. He believed his reputation was "cruelly ripped away" from him by the defendants. Upon cross examination Mr Burke confirmed that he had operated several websites, attended the Mayo Pride March in 2018 to protest it, and that he had been the managing director of a campaign group involved in a legal challenge to civil partnership legislation. He confirmed these matters as conveyances of his religious beliefs.
In his evidence Mr English agreed that there was a "fascination" surrounding the Burke stories given that the issue of gender identity was a "big talking point" at the time. He also admitted that a story relating to Mr Burke and his relationship with the justice system would have been "of news interest and within the public interest". Upon cross examination he rejected Mr Burkes description of the articles as "gutter journalism" and "an insult to the people of Castlebar." In her evidence Ms Bracken accepted that she had tried to get the locals of Castlebar to voice their opinions on the plaintiff. She was unsuccessful and only two residents agreed to talk off the record. Ms Bracken denied Mr Burke's description of the article as a "hit job" and said that she had accepted information regarding Mr Burke's cell move for personal safety from a confidential source and in good faith.
There were no substantive issues on the facts of the case. The disputes between the parties involved the interpretation of the facts. Given the evidence, it was accepted that Mr Burke had a good relationship with the other prisoners. Mr Burke had gained significant media attention at the time the article was published and was of significant interest to the public. The article had been widely published and attracted a sizeable number of comments online. It was held that the defendants did not unduly delay the removal of the article and they were entitled to check the alleged inaccuracies. The Court did find however that the apology and correction was unduly delayed and the fact that legal proceedings were issued was not an adequate excuse for this delay.
Was the article defamatory?
In his arguments, Mr Burke maintained among other things that the natural and ordinary meaning of the words in the article suggested he was unfit and / or unsuitable to be employed as a teacher, but the Court disagreed. The Court held that the natural and ordinary meaning of the article was that Mr Burke expressed his religious views to his fellow prisoners and that this was standard behaviour for him. Moreover, the Court decided that the impact this expression of views had on 'typical' prisoners was to annoy them to the point where they might threaten him with violence, that prison authorities were cognisant of this and thought that moving him in with model prisoners would help avoid risks to his safety. The threshold for a defamatory statement is the tendency of the statement to 'injure' a person's reputation. The Court highlighted that freedom of expression and freedom of religion are constitutionally protected rights, therefore a statement claiming a person was exhibiting their religious views simply implies the person is true to those principles and could never be defamatory. The Judge held the fact that Mr Burke was imprisoned for contempt of court wholly undermined the claim that his reputation was damaged and the suggestion that he severely annoyed his fellow prisoners by the repeated expression of his religious beliefs was, in those circumstances, "a whisper in the hurricane of noise which his actions in September 2022 created". Finally, the Court found that given Mr Burke's reputation at the time the article was published, the article could not and did not injure his reputation, even though the Court accepted a blemished reputation could still be injured.
Fair and reasonable publication defence
Section 26 of the 2009 Act provides a defence of fair and reasonable publication, citing the need for the publication to be in good faith and for the public benefit. Judge Mulcahy held that if the Court had to decide the case under this defence, although Mr Burke was in no doubt a public figure at the time the article was published, it was a challenge to see what public interest discussion this article would be furthering.
Comment
While it has long been believed that it is difficult to defend court proceedings where an article contains incorrect information, this decision demonstrates that it is not impossible. Accuracy is only one part of the equation in determining whether a publication is defamatory. The laws governing defamation in Ireland do not contain a remedy for untrue statements made about a person, even if the untrue statements cause upset. For a remedy under the 2009 Defamation Act, a plaintiff must prove that the untrue statement tended to injure their reputation.
Where there are reputational issues, the Court confirmed that the relevant date for determining reputation is the date of publication and not the date of trial. Any reputational issues that arise post publication are relevant to the damages award only. The Judge also acknowledged that while a "blemished" reputation can be damaged, where the words complained of are not inconsistent with a plaintiff's actual reputation then, in the Judge's view, no injury to reputation has occurred.
Another noteworthy aspect of the decision is the Judges findings on the actions of the newspaper after it had received the complaint in terms of the take down of the online article in question and the publication of the apology. The article was removed within three days of publication and two days of complaint. The Judge described this as "not unduly delayed". However, the Judge found that the apology and correction was unduly delayed having only been published nearly three months after publication of the offending article. This demonstrates that publishers should publish apologies and corrections as soon as possible and a delay of weeks or months may be difficult to justify.
Finally, the Judge also opined on the "fair and reasonable publication" defence. He held that if he had to decide the case on that section the defendant would have failed. In his view the article was not about a matter of public interest or for the benefit of the public. While this part of the judgement would not seem to be binding on future courts, it does offer an insight into judicial thinking on what constitutes the "public interest" by highlighting the difference between matters that are simply interesting to the public, which is why they are published in newspapers, and those that are of "public interest" in the eyes of the law.
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