Court of Appeal not swayed in “Swinging” Defamation/Privacy Case
By Darryl Broderick
12 June 2019
The Court of Appeal has recently upheld a High Court finding of defamation against the Sunday World newspaper while also awarding damages for breach of privacy1. While the particular facts of the case drew attention to it, the decision is noteworthy in being a rare Court of Appeal decision on defamation and privacy and also one where significant damages were awarded.
Brian Nolan was a former intercounty GAA player who had attended some swingers’ parties with a former partner. The Sunday World published two articles on 15 July 2012 and 3 March 2013 that referred to Mr. Nolan as an organiser of such parties. The Sunday World later accepted that it was incorrect to suggest that Mr. Nolan was an organiser of such parties but it was undisputed that he had attended such parties. Mr. Nolan issued High Court proceedings against the Sunday World and those proceedings came before Judge O’Connor in May 2017.
High Court Case
The Sunday World defended the proceedings on the basis that the articles in question were not capable of bearing the meanings ascribed to them by Mr. Nolan. The newspaper also claimed that the articles were published on an occasion of privilege, namely that they were published in good faith as part of lawful and legitimate reporting of matters of public interest.
In terms of the assertion that Mr. Nolan was a public figure, the newspaper, relied, amongst others, on the fact that he was a well-known inter-county GAA footballer and that he had achieved notoriety in the media in 2002 when convicted of money laundering, which resulted in a suspended sentence and fine of €25,000.
The plaintiff gave evidence to the High Court that the articles had a significant detrimental impact on his family life including causing his wife, from whom he was separated, to question his suitability to have contact with their children. At the High Court the newspaper made the case that any detrimental impact on the plaintiff’s life was because he attended the swingers’ parties and the suggestion that he organised the parties did not influence the thinking of those who had read the articles.
Judge O’Connor held that the articles were salacious and defamatory and awarded Mr. Nolan €250,000 in general damages, €30,000 in aggravated damages and €30,000 in punitive damages. The award was one of the most significant defamation awards in recent times and caused certain shockwaves in the media industry. The Sunday World appealed the decision and Mr. Nolan cross appealed in relation to the Judge’s failure to award any damages for breach of privacy.
Court of Appeal decision
In the Court of Appeal the newspaper submitted that Mr. Nolan had accepted in his evidence that it was his attendance at the parties that was damaging to his reputation. The Court of Appeal held that the meaning of an article is to be determined by the trial judge (or the jury as the case may be) not so much based on the plaintiff’s subjective view but what the reasonable reader of the articles would consider the meaning to be.
As regards the public interest, the newspaper submitted that the articles were a topic of general and important public debate. The newspaper argued that the damages were disproportionate and failed to account for the fact that Mr. Nolan was a public figure and a willing participant in the parties and consented to the taking of photographs showing him at such parties.
While the photographs in question were taken with the consent of Mr. Nolan the Court of Appeal held that it was implicit that the photographs would remain private and would never be published in a newspaper without Mr. Nolan’s consent and indeed the consent of any other attendees who could be identified in any particular photograph. It was noteworthy that the newspaper pixelated out the faces of other persons in the photographs.
While Mr. Nolan permitted the photos to be taken and may have appreciated that the photos might be distributed among a limited number of people, that did not, contrary to the view of the High Court, constitute a waiver of privacy and the newspaper must have been aware that publication of the photographs was an invasion of his privacy. There was no overriding public interest to be served by publishing the photographs. Mr. Nolan was not a public figure and it could not be argued that there was a valid public interest in exposing him as a person who attended such parties.
The Court awarded the sum of €200,000 for general damages for defamation as well as €30,000 for punitive damages and €30,000 for exemplary damages but also made an award of €50,000 for damages for breach of Mr Nolan’s constitutional right to privacy.
While the award is significant, in terms of its quantum, it should not significantly concern the main stream media for a number of reasons. The article was salacious and unusual in its facts. If there had been a significant “public interest” to the story but nevertheless it was found to be defamatory, it is difficult to conceive that the Court of Appeal would have awarded anywhere near the same damages. The articles also had a significant detrimental impact on Mr. Nolan who not only had family and social difficulties as a result, but evidence was given on his behalf that the articles resulted in depression and suicidal ideation. The newspaper was also not helped by the uncontradicted evidence that some of the photographs which purported to be at swingers parties were in fact taken at a private Halloween party. In addition the images had been supplied by the former partner of the claimant who provided private details of their sex life to the Sunday World.
Successful Privacy claims are very rare in this jurisdiction. The right to privacy must be weighed against the right to freedom of expression. Once the publisher can prove that an article is justifiable then there should not be a finding of breach of privacy. The Court of Appeal found there was no valid public interest in publishing the stories. While it found that Mr Nolan was not a public figure, if he was a public figure, say a politician, it is likely that the findings would be the same unless some exceptional circumstances arose whereby it could be justifiable to publish images of the public figure attending a private party no matter what type of party.
  IE CA 141