About this case:

• Citation:
  [2022] IEHC 135
• Judgment:
  External link
• Court:
  High Court
• Judge:
  Ms Justice Emily Egan

Delivering judgment in the case, Ms Justice Emily Egan held that it was a matter for a jury to determine the defence and that the jurisdiction to strike out a pleading should be sparingly invoked. Further, the court held that Mr Adams had to provide discovery of certain documents relating to his involvement in the IRA to the BBC.

Background

In September 2016, the BBC broadcast a Spotlight episode entitled “Spy in the IRA”. The following day, the BBC published an article based on the programme with the headline “Gerry Adams sanctioned Denis Donaldson killing”. In the article, the BBC outlined allegations by a former IRA and Sinn Féin member that Mr Adams sanctioned the murder of Mr Donaldson, an MI5 agent.

The article recited anonymous comments from the informant stating that Gerry Adams would give the “final say” on all murders committed by the IRA. The article also recorded Mr Adams strong denial of any involvement and that the Real IRA claimed responsibility for the killing.

On foot of the programme and the article, Mr Adams initiated defamation proceedings against the BBC claiming that the BBC had used words which meant that Mr Adams had approved Mr Donaldson’s murder.

As part of the defence, the BCC invoked section 26 of the Defamation Act 2009, which provided for the defence of fair and reasonable publication in matters of public interest. Arising from the provisions of section 26, it was pleaded that the article was published in good faith and discussed matters for the benefit of the public. Further, the BBC generally maintained pleas that the publication was responsible journalism.

The BBC relied on, inter alia, the reporting of the informant’s beliefs/opinions (rather than facts) and on the reproduction of Mr Adam’s denial. Further, the BBC relied on Mr Adam’s pre-existing involvement with the IRA and credible allegations for his role in IRA atrocities.

Subsequently, Mr Adams issued a motion seeking to strike out the section 26 defence in respect of the article. It was claimed that the article did not inform the reader of ongoing Garda investigations or the charging of a dissident republican with the murder. Further, it was argued that the article was still available to view and that it had not been flagged to readers that the contents were the subject of a defamation action. Accordingly, Mr Adams relied on Loutchansky v. Times Independent Newspapers [2008] QB 783 to say that the BBC should have published a notice of Mr Adam’s claim with the article.

The BBC’s defence admitted publication and did not stand over the truth of the allegation that Mr Adams sanctioned the killing. Accordingly, Mr Adams argued that, from the date of the defence, the continued publication of the article without amendment was not fair and reasonable and the section 26 defence was bound to fail.

Separately, the BBC issued a motion for discovery seeking two categories of documents. First, the BBC sought all documents evidencing Mr Adams’ association with the IRA. Second, the BBC sought all documents evidence the plaintiffs knowledge of the treatment of informers or agents by the IRA (Mr Donaldson was allegedly killed for being an informant).

Mr Adams submitted that the categories should not be granted because the BBC had published the article/programme without sight of any such documents. Accordingly, the documents could not inform the defence to the proceedings, Mr Adams argued. It was said that the assessment of fair publication was confined to the state of knowledge of the defendant at the time of publication.

High Court

Ms Justice Egan began by considering the strike out application. The court held that a court would not strike out a pleading unless it would be perverse for a jury to uphold the plea. In the present case, the question was whether the failure to attach a so-called Loutchansky notice to the article would be perverse to put to a jury in the context of a section 26 defence.

The court held any decision on the issue was a matter for the jury. The jury would be required to assess various factors set out in section 26(2) of the 2009 Act, the court said. Further, a defendant is entitled to plead a “meanings defence,” where a jury might find the real meaning of the impugned article (Declan Ganley v. Raidió Telifís Éireann [2019] IECA 18). Overall, the general principles for strike out applications applied to the present case, although the court had to be mindful that the ultimate decision-maker was the jury.

On the plaintiff’s reliance on Loutchansky, the court held that a plaintiff could not dictate the matters which a jury could consider. The ten factors of responsible journalism outlined in Reynolds v. Times Newspapers Ltd. [1999] 1 All ER 609 should not be elevated to strict rules of law, the court held.

Finally, the court noted that there was legal uncertainty as to the “single publication” rule and section 26. The BBC argued that, under the 2009 Act, a cause of action accrued on the date of first publication and that any further publication did not create a separate cause of action. As such, it was said that any failure to withdraw or qualify the publication could not disentitle the BBC to rely on section 26.

The court held that the single publication rule was a highly complex legal issue and therefore the court would not dismiss the section 26 defence. Even if the BBC was wrong in its interpretation of the single publication rule, the court could not safely conclude that the lack of a Loutchansky notice meant that the section 26 defence was bound to fail.

Discovery

Considering the application for discovery, the court held that a broad and open textured approach had to be taken when considering the factors of a reasonableness defence under section 26 (Desmond v. The Irish Times Ltd [2020] IEHC 95). Those factors went beyond the mere state of knowledge of a journalist. If the BBC could produce credible evidence of the truth of the publication, then this would be relevant to a section 26 defence.

The documents in the first category were therefore relevant, the court held. However, the second category was not relevant because Mr Adams had been involved in politics for several decades and his knowledge would not imply that he approved of the IRA’s actions against informers.

The first category was also relevant as it could affect the jury’s opinion of Mr Adams’ reputation. However, the court held that it would be disproportionate for Mr Adams to produce all relevant documents in the category. Accordingly, the court limited discovery to 1) the earliest documents evidencing Mr Adams’ membership of the IRA and the Army Council and 2) the latest documents evidencing Mr Adams’ membership of the IRA and Army Council.

Conclusion

The court refused to dismiss the defence of fair and reasonable publication. The court granted limited discovery of Mr Adams’ involvement with the IRA and Army Council.