Nolan v Sunday Newspapers Ltd
| Jurisdiction | Ireland |
| Judge | Mr. Justice O'Connor |
| Judgment Date | 26 June 2017 |
| Neutral Citation | [2017] IEHC 367 |
| Court | High Court |
| Docket Number | [2013 No. 5116 P.] |
| Date | 26 June 2017 |
[2017] IEHC 367
THE HIGH COURT
O'Connor Tony J.
[2013 No. 5116 P.]
Defamation – Defamation Act 2009 – Damages & Restitution – Loss of reputation – Failure to take remedial measures – Punitive and aggravated damages
Facts: The plaintiff claimed compensatory, aggravated and exemplary damages for infringement of privacy and breach of confidence as a result of publication of certain photographs in the defendant's newspaper.
Mr. Justice O'Connor awarded punitive and aggravated damages to the plaintiff. The Court found that the alleged defamatory material had brought shock, trauma and disgrace to the plaintiff. The Court took into account the unapologetic attitude of the defendant while assessing the damages. The Court held that there was no public interest in publishing the salacious material. The Court found that the defendant did not give any consideration to the plaintiff's plea in advance of the publication in the relevant year about the potential effect on the relationship of the plaintiff with his family. The Court observed that the failure of the defendant to exclude incriminating evidence, the refusal to heed warnings on the plaintiff's personal and professional life, and the loss of reputation of the plaintiff were the factors that called for awarding the aggravated damages to the plaintiff.
In these proceedings, the plaintiff claims compensatory, aggravated and exemplary damages for defamation, infringement of his right to privacy, and breach of confidence as a result of articles surrounded by photographs (some pixellated to disguise people other than the plaintiff) published on Sunday, 15th July, 2012, (‘ the 2012 edition’) and Sunday, 3rd March, 2013 (‘ the 2013 edition’).
The plaintiff's parents (the plaintiff's father died over a year after publication of the 2013 edition), his two brothers, sister, extended family and members of his sports clubs and community were undoubtedly aware if not proud of the plaintiff's skills in Gaelic football and rugby given his achievements from school until the late 1990s. The plaintiff played with the Leinster School's rugby team and at all levels for County Kildare in Gaelic football. The plaintiff, in evidence, was realistic about his recognition among the public. It is fair to say that a small percentage of those who read the defendant's newspaper (‘ the Sunday World’) in 2012, would have identified the plaintiff as an accomplished sportsman without the aggrandisement by the Sunday World of his sporting achievements in the 2012 edition and in the 2013 edition ( ‘the editions’).
On 27th November, 2002, the plaintiff having pleaded guilty to a money laundering charge was (according to a press report accepted as accurate by the plaintiff in evidence) then fined IR£20,000 (€25,395) and given a suspended sentence by the Dublin Circuit Criminal Court following evidence that the Criminal Assets Bureau's account had been credited by the plaintiff for the proceeds. Involvement in that money laundering did not enrich the plaintiff. He discharged his debt to society for that conviction by the sentence, fine and subsequent publicity. His then business ceased.
The recall of those events in the editions published over a decade later meant that the plaintiff was brought back on the stage of nationally reviled convicts with serious consequences for the plaintiff as will be explained. Most reasonable people take a view that convictions given in youthful years, at a time of stupidity and naivety or a decade ago should not engender any particular interest unless those convictions are relevant to a subsequently linked crime. That attitude arises from cultural, religious, historical and societal influences, which is manifested in the recent uncontroversial commencement of the Criminal Justice (Spent Convictions and Certain Disclosures) Act 2016. This is not to say that mention of the plaintiff's conviction is defamatory but context is indeed all important.
The left hand column on the front page of the 2012 edition had a box entitled ‘ EXCLUSIVE’ followed by a photograph of the plaintiff with the scantily clad upper body of a woman whose face was pixellated (‘ photograph 1’) before highlighting ‘EX-GAA STAR IS THE BIGGEST SWINGER IN TOWN’.
Page 10 of the 2012 edition then had a picture of the plaintiff (‘ photograph 2’) taken by the defendant's photographer outside his then Dublin home in circumstances which I will mention later. There were two photographs alongside which had a picture of the plaintiff stretching for a football when playing for Kildare some twenty years previously (‘ photograph 4’) and a picture of the plaintiff leaning against the lower back of a woman who was leaning towards a fireplace with the backs and legs of two other women, below the shoulder line to knee height with fishnet tights (‘ photograph 3’).
The following page in the 2012 edition ascribed to Niall Donald (‘ the Journalist’) had the following photographs:-
(i)the plaintiff with a woman whose face was pixelatted in a fancy dress costume and containing the caption ‘SLEAZY: Nolan at party’ (‘ photograph 5’);
(ii)the plaintiff holding a woman in lingerie whose face was also pixelatted and with a caption ‘CAUGHT: Nolan gets to grips with a guest’ (‘ photograph 6’);
(iii)a person with a fancy dress wig, face and costume having a comment: ‘ORGIES: A source said Nolan organised parties’ (‘ photograph 7’); and
(iv)the plaintiff in a fancy dress costume with the caption: ‘ KINKY: Nolan dressed as a woman’(‘photograph 8’).
Viewing those photographs and captions inclines a reasonable viewer towards an impression that the plaintiff was a major organiser of orgies.
The Journalist in the columns surrounding photographs 5, 6, 7 and 8 started the much vaunted exclusive with the sentence: ‘ MEET the convicted money launderer and former GAA star who now gets his kicks as Ireland's unofficial King of the Swingers’.
The text asserted that the plaintiff ‘ has continued to score freely by helping organise swinger parties across Ireland’. It gratuitously continued to mention a physical disability suffered by the plaintiff and an alleged encounter by the plaintiff with ‘ a porn star’ on ‘ the day that [the porn star] was exposed’ by the Sunday World. Rather disturbingly, the Journalist then lurked back ten years to the circumstances of the suspended sentence given to the plaintiff. The Journalist then took the liberty to mention on the same page, the assassination of a convicted ‘ mobster’ in 2002, responsibility for which was denied to the Sunday World by a robber sentenced to six years in 2002. These latter details were totally inconsequential and irrelevant to the ‘ swinger’ parties which were the focus of photographs and captions on that page. I shall return to this aspect later.
The plaintiff was characterised by the 2012 edition as a principal organiser of orgies in the State with a lurking undertone of criminality.
On Sunday, 3rd March, 2013, the defendant published what it described on the front page of the 2013 edition a ‘12 – page Sunday World a real Irish Sunday investigation’ with a picture of a couple undressing and a woman with high heels on a stairs wearing only a bra and knickers. Below the photographs were headlines, the first three of which read: ‘inside the online world where vice is just a click away** the exhibitionist and the voyeurs exposed** we reveal handymen who swap services for sexual favours’.
The 2013 edition for Northern Ireland had the same cover page but confined itself to eight pages. This Court is concerned with the twelve page edition distributed in the State which had one part referring under the headline ‘ KINKY ESCORT COUPLES SEEDY SEX SESSIONS’ to a prostitution website and an entrapment exercise carried out by a newspaper reporter.
The Journalist who penned the above mentioned excerpts from the 2012 edition then contributed, or at least put his name down for, the next few pages to the 2013 edition. These pages contained a photograph of the plaintiff holding his hand over the breast of a woman in a bikini while her face was pixelatted (‘ photograph 9’) which had the caption: ‘ SWINGERS: Brian “Spike” Nolan’. The text immediately to the left of the plaintiff's head stated as follows:-
‘It has spawned a series of ‘cottage industry’ sex workers - most of whom are not under the control of a pimp or criminal gang. Just like other small internet businesses, these specialised operators sell directly to the consumer – cutting out the middleman’
The next page had a photograph of the plaintiff similar if not identical to photograph 6 in the 2012 edition with a different heading, however, ‘ STILL SCORING: Former GAA player Brian Nolan now organises sex parties’.
After referring to brothels and ‘ legitimate massage parlours’ before repeating the Journalist's association of the plaintiff with the so-called celebrity porn star, the Journalist on p. 49 of the 2013 edition wrote:-
‘Another inter-county GAA star also made the headlines for his seedy sexual antics in 2012 [i.e. by the defamatory 2012 edition]. [The plaintiff] first shot to prominence as a talented forward who played for Kildare in the 1992 Leinster final against Dublin. But [the plaintiff] proved less than Lilywhite when he was convicted of laundering money for mobster… a decade later. Despite hanging up his football boots [the plaintiff] has continued to score freely by helping organise swingers' parties across Ireland.’
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