Here’s what I learned in the past seven days.
Denis O’Brien was born in County Cork, Ireland, on 19th April 1958. He is probably Ireland’s richest native-born citizen. He owns Communicorp, a media company launched in 1989 that now owns 42 radio stations in 10 European countries (the UK, Bulgaria, Czech Republic, Estonia, Finland, Hungary, Ireland, Latvia, Ukraine), including all Irish radio stations not run by the state broadcaster RTÉ.
The UK radio stations owned by Communicorp are: Capital South Wales, Capital Scotland, Heart North Wales, Heart Yorkshire, Real Radio XS, Smooth East Midlands, Smooth North East, Smooth North West.
He also has a controlling interest in the Independent News & Media group, which, in Ireland, comprises the Irish Independent, the Irish Daily Star, the Sunday Independent, the Sunday World, the Evening Herald in Dublin and several regional newspapers: and, in Northern Ireland, the Belfast Telegraph Group. He also owns telecoms provider Digicel, which is based in Jamaica, incorporated in Bermuda, has about 13 million wireless users, and operates across the Caribbean, Central America and Oceania. A listing of companies owned by Denis O’Brien can be found at OpenCorporates.
On Wednesday 17th June, RTÉ published a story about Denis O’Brien: the headline was Denis O’Brien sought more time to repay IBRC loans, citing alleged verbal agreement with bank’s former CEO. The opening paragraph of the story on their website notes: “This is a curtailed version of the story RTÉ sought to publish last month. Two paragraphs of the original planned story cannot be published as they are still covered by the injunction granted to IBRC against RTÉ in May.”
The IBRC is the Irish Bank Resolution Corporation, formed on 1st July 2011 by a court-mandated merger of two failed banks, the Anglo Irish Bank and the Irish Nationwide Building Society. The Anglo Irish Bank failed and was taken into state ownership in January 2009: the Irish Nationwide Building Society received a €5.4bn bailout from the government in August 2010 which effectively nationalised it. The IBRC went into liquidation on 7 February 2013, by emergency legislation passed in the early hours of the morning.
The injunction referred to concerned an alleged verbal agreement with a former CEO of IBRC and another senior executive, that allegedly Denis O’Brien had been charged a rate of approximately 1.25% on his IBRC loans, which allegedly amount to upwards of 500 million euros (the equivalent of over £350 million pounds): whereas – according to Catherine Murphy, on 28th May, a TD / member of Dáil Éireann –
IBRC could, and arguably should, have been charging 7.5%.
Denis O’Brien immediately said that Catherine Murphy’s comments were false and an abuse of Dáil privilege.
On Friday 22nd May, the Irish Times (not part of the Independent News & Media Group) reported:
Businessman Denis O’Brien said he was “delighted” after winning a High Court injunction on Thursday against RTÉ preventing the broadcast of a news report about his debts to the State-owned bank IBRC.
The bank has also secured an injunction against the broadcaster in relation to the proposed report, which was to have included information that was also contained in legal advice drafted by the bank’s solicitors.
This injunction was deemed to apply to Catherine Murphy’s speech in the Dáil on 28th May 2015.
Alex Thomson at Channel 4 News wrote in his blog on 29th May:
Denis O’Brien denies the story but – whether it’s correct or not – it could hardly be more in the public interest. And yet the Irish public are largely denied hearing, seeing or reading the allegations made by the TD (MP) Catherine Murphy yesterday in the Dáil.
As you might expect, nothing substantive has appeared in the Irish newspapers and radio stations that the Malta-based billionaire owns and controls. While the Irish Independent, the country’s biggest selling newspaper, reports on the existence of the row – it doesn’t mention the contents of the speech.
His lawyers have also issued an injunction against the wider Irish media – including state broadcaster RTÉ. They have been prevented from reporting yesterday’s speech – even though it was said in the country’s parliament by an MP.
They successfully argued that the remarks in the Dáil were covered by a previous injunction, which was granted when the broadcaster was previously planning to cover the story. RTÉ’s arguments about press freedom and legitimate journalistic inquiry on behalf of the public were rejected.
On 9th June, Pearse Doherty, Sinn Fein TD, is reported to have argued for broader terms of reference: he said in the Dáil
the inquiry only covered transactions that existed before the liquidation and were executed afterwards. Management decisions were key, he added.
He said it seemed the terms Mr O’Brien availed of from IBRC allowed him to pay down a loan from Bank of Ireland to purchase Siteserv in the first instance
On 10th June 2015, the Dáil agreed the terms of the investigation to be held into alleged mismanagement at IBRC.
We also know that Denis O’Brien felt confident enough in his dealings with IBRC that he could write to Kieran Wallace, the special liquidator, and demand that the same favourable terms extended to him by way of a verbal agreement be continued.
We now have Kieran Wallace, who has been appointed by the government to conduct the IBRC review, actually joining with IBRC and Denis O’Brien in the high court to seek to injunct the information I have outlined from coming into the public domain. Surely that alone represents a conflict”.
Denis O’Brien immediately said that Pearse Doherty’s comments were false and an abuse of Dáil privilege.
And on 16th June 2015, Denis O’Brien launched a legal action against the Houses of the Oireachtas Commission, the Republic of Ireland, and the Attorney General Máire Whelan SC, claiming the remarks made by Catherine Murphy and Pearse Doherty were “interference with the operation of the courts” and “a breach of his rights under the Constitution and European Convention on Human Rights”. On 1st July, the President of the High Court Justice Nicholas Kearns ruled that the case would not go to court until 7th October 2015.
On 18th June, the Irish Times reported:
The original broadcast, prepared by business editor David Murphy, was not aired yesterday, however. It is understood it will be made available on RTÉ’s website.
Mr O’Brien went to court last month to block the story on the basis it was a breach of his privacy and would damage his standing with other banks.
Much of the information was later revealed to the Dáil under privilege by Independent TD Catherine Murphy and Sinn Féin’s Pearse Doherty.
Catherine Murphy’s remarks of 28th May were not quoted or repeated in any Irish media outlet due to the injunction referenced earlier. (However, @okellyabu is reported to have tweeted “Just saw people handing out Catherine Murphy’s Dáil debate speech in Kilkenny; huge interest by people without internet.”)
Roy Greenslade wrote in the Guardian on 29th May:
So there it is. The owner of the bulk of Ireland’s media outlets is using an injunction to prevent reports on his affairs appearing in the rest of the media he doesn’t control.
Clearly, there are questions to ask about the press freedom implications due to Ireland’s lack of media plurality and diversity.
There is no thought of a commission into press freedom in Ireland. But a commission has been established to look into the dealings of the IBRC. This commission was originally to be chaired by Kieran Wallace. In June 2015, Judge Daniel O’Keeffe was appointed to chair the commission: on 9th July 2015 O’Keeffe told the Taoiseach that “for personal reasons, he is unable to continue” and Brian Cregan, a judge of the High Court, was appointed to replace him.
consider all transactions, activities and management decisions …. which occurred between 21 January 2009, the date of nationalisation of IBRC, and 7 February 2013, the date of appointment of the special liquidators to IBRC, and which either resulted in, first, a capital loss to IBRC of at least €10 million during the relevant period, whether by consequence of a single transaction or a series of transactions relating to the same borrower or entities controlled by the same borrower or, second, are specifically identified by the commission as giving rise or likely to give rise to potential public concern about the ultimate returns to the taxpayer. The purpose of the two provisions is to ensure the judge is mandated to review all transactions, activities or management decisions that resulted in a capital loss of €10 million, but he will also have the power to investigate other transactions, activities or management decisions that resulted in a smaller loss but which are identified as giving rise or likely to give rise to potential public concern.
One of the questions within the scope of the commission is about Siteserv, an Irish construction services company purchased by Millington in March 2012 (Millington Limited is another Denis O’Brien company, incorporated in the Isle of Man on 7th December 2011) for 45.5 million euros. IBRC owned 150 million euros of Siteserv’s debt and at least 350 million euros of Denis O’Brien’s debt. The Irish taxpayer apppears to have lost 110 million euros on the sale to O’Brien, while O’Brien was allegedly benefiting from a very generous interest rate on the money loaned to him from IBRC. Denis O’Brien said on 24th April 2015 that “he did not run the sale process which led to his company Millington acquiring Siteserv.”
The Dáil Committee on Procedure and Privileges (CPP) ruled that Catherine Murphy “did not abuse her parliamentary privilege when making claims about his business dealings”. The CPP also ruled that whether Murphy’s remarks were true or false could not be determined until the commission had reported, and the commission’s report was due on 31st December 2015.
On Friday 31st July 2015, Denis O’Brien launched a legal suit against each of the ten members of the CPP, sending individual letters to each TD via William Fry. “the law firm of choice for corporate Ireland“. This case too will not go to court until 7th October 2015.
The CPP members to be sued by Denis O’Brien are: Seán Barrett (Fine Gael), who is the Ceann Comhairle of the CPP, Joe Carey (Fine Gael), John Halligan (Independent), Martin Heydon (Fine Gael), Paul Kehoe (Fine Gael), John Lyons (Labour), Dinny McGinley (Fine Gael), Seán Ó Fearghaíl (Fianna Fáil), Aengus Ó Snodaigh (Sinn Féin) and Emmet Stagg (Labour).
Micheál Martin, the leader of Fianna Fáil, said on Monday 3rd August that
“the proceedings represent a threat to a fundamental right enshrined in our Constitution, which is freedom of speech in parliament”.
Denis O’Brien issued a statement on Saturday 8th August asserting that “he respects Dáil privilege, as long as it is not exploited in order to damage someone else’s reputation.”
On 7th October 2015, Denis O’Brien will be taking to court ten members of the Dáil Committee on Procedure and Privileges, the Houses of the Oireachtas Commission, the Attorney General of Ireland, and the Republic of Ireland itself. Where could he possibly go from there?
Presciently, on 1st May 2015, the satirical “news” site Waterford Whispers published an article entitled “Denis O’Brien To Sue Everyone”:
FOLLOWING legal proceedings undertaken by voiceless billionaire Denis O’Brien against both RTÉ and the Sunday Business Post comes news that the Digicel kingpin is set to sue absolutely everyone.
“We’re particularly targeting people who have had negative thoughts about Denis in their head but have never uttered them in a public forum,” O’Brien chief counsel Damien Byrd told WWN.
“It’s hard to prove, but being sued by Denis O’Brien isn’t without its advantages. If this is your 5th time having legal action taken against you, you qualify for a free coffee at any Topaz service station,” added Byrd.
On 5th August 2015, Waterford Whispers published an article entitled “Denis O’Brien Receives 20 Year Jail Sentence For Mobile Phone Licence Bribe In Parallel Universe”.
Obviously, no part of that headline or that article was true. Denis O’Brien has not been sentenced to 20 years in jail: he did not bribe a politician to get a mobile phone licence: and while in a quantum sense all possible parallel universes exist, Waterford Whispers quite evidently did not intend its satiric reporting “from a parallel universe” to be believed or to be believable.
As discussed on Broadsheet.ie, the key point of satire not being open to prosecutions for libel is not that it’s funny (humour being subjective: Denis O’Brien doubtless did not find that Waterford Whispers article at all amusing) but that it would not be believed to be true by a reasonable person. The Waterford Whispers article was therefore not defamation.
Nevertheless, when a litigious billionaire’s lawyers (this time Meagher Solicitors, “Clear Thinking Law Firm, Offering a Fresh Approach to Legal Advice”) write a cease-and-desist letter, a website is well-advised to remove the article.
On 6th August, Meagher Solicitors wrote to Waterford Whispers to let them know they had seriously offended Denis O’Brien: “The clear meaning and innuendo of this article is that our client is a criminal who has managed to evade prosecution to date. This is a malicious and deliberate defamation of the most serious kind” and Colm Williamson,, editor of Waterford Whispers, wisely removed the offending article, publishing the letter from Meagher Solicitors in its place, to serve as an explanation and a warning. Waterford Whispers also apologised to John Gilligan, whose photoshopped image had been used to illustrate the offending article.
— Colm Williamson (@ColmWhispers) August 6, 2015
There is a thing called the Streisand Effect, which Denis O’Brien appears not to have been aware of. I first became aware of Denis O’Brien’s existence, as far as I can remember, with the Monday news that he planned to sue all ten members of the Dáil Committee on Procedure and Privileges.
But the point at which the Streisand Effect took hold, for me and many others, was the Meagher Solicitors letter to Waterford Whispers.
(When Broadsheet.ie advised Denis O’Brien via Meagher Solicitors that in their view the Waterford Whispers article was not defamatory and so they had republished it, Meagher Solicitors then wrote to Protocol Internet Technology Limited to let them know they should “take immediate steps to remove the defamatory content referred to in our letter then we will hold you liable for all damage suffered by our client.” This is a small company registered in Waterford, trading as ‘Hosting Ireland‘, which provides domain name registration and hosting services to, among other websites, Broadsheet.ie. See discussion here about whether a web hosting company can be held legally liable as a secondary publisher for the offending article by Waterford Whispers.)
The Streisand Effect is as follows:
If it becomes known that someone of power, fame, or influence is using strong measures to attempt to suppress a piece of information or a work, then many people will want to know what it is even if they never cared before.
This Effect is centuries older than Barbra Streisand, after whom it’s named: in 1543, astronomer Nicolaus Copernicus published De revolutionibus orbium coelestium and died shortly afterward: 276 copies were printed of this first edition, and in 1566, another printer published 325 more copies: no one except mathematicians and astronomers were interested. On 5th March 1616, De revolutionibus orbium coelestium was placed on the Index of Forbidden Books by a decree of the Sacred Congregation as incompatible with the Catholic Faith (“This Holy Congregation has also learned about the spreading and acceptance by many of the false Pythagorean doctrine, altogether contrary to the Holy Scripture, that the earth moves and the sun is motionless”) where it remained until 1758. Though the book had been nearly fifty years out of print, the third edition of De revolutionibus orbium coelestium was very promptly published in 1617: on being told nobody could read it, everybody wanted to.
The other rule that Denis O’Brien was apparently unaware of:
“The Net interprets censorship as damage and routes around it.”
–John Gilmore, 1993