Irish news organisations go to court to find out if parliamentary privilege trumps Denis O'Brien's gagging order

Lawyers for the Irish Times and State-owned broadcaster RTE are to go to the High Court in Dublin tomorrow in a bit to clarify whether they can report on comments made in the Irish parliament.

The moves comes amid a row over the actions of media mogul Denis O'Brien, who has told media organisations that an injunction he obtained last week which bans RTE from broadcasting a report about O'Brien's
private banking affairs with IBRC – the State-owned Irish Bank Resolution Corporation, which used to be Anglo Irish Bank.

O'Brien has argued that that order prohibits media reporting of a statement made last week in the Dail by Independent TD Catherine Murphy, who questioned arrangements between O'Brien and IBRC over loans and
interests rates.

O'Brien is considered to be Ireland's richest man and controls major newspaper publisher Independent News and Media.

The row has raised the issue of whether a High Court injunction can prohibit media reporting of statements made in the Dail.

The Irish Times quoted its editor, Kevin O'Sullivan, as saying: "We believe it is critically important to our democracy that we publish a matter of public interest raised in our national parliament, and will apply to the court for confirmation we can do so."

Murphy's comments in the Dail are protected by parliamentary privilege, as are statements made by MPs in the House of Commons.

Her speech is also available on the Oireachtas website (the website of the Irish legislature), and can be viewed on YouTube here.

But O'Brien's lawyers have been warning media organisations and broadcasters that they will be breaching the injunction if they report Murphy's speech.

The Irish Times reported that Government minister Paschal Donohoe had described the situation as "exceptionally serious" and quoted him as saying: "I do not believe it's tenable that media outlets in Ireland
cannot report on what is taking place in our parliament and media outlets outside of Ireland can and are. That is not acceptable."

The newspaper also quoted Labour's Pat Rabbitte as saying: "The obvious remedy is the speediest possible return to the court for clarification.

"No court said that you may not report on what happens in the Dail.

"We've all jumped ahead to this conclusion that the media are somehow disbarred as a result of an injunction served by Mr O'Brien against a particular broadcast."

Fianna Fail Senator Thomas Byrne said he would be raising the issue with the appropriate authorities in the Oireachtas and ask that it should belegally represented at tomorrow's court hearing.

"We are approaching a major constitutional crisis this week and it seems neither the Government nor the Houses of the Oireachtas are planning to have a voice in a legal action concerning the Constitutional protection
afforded to members of Dail and Seanad Eireann and the reporting of statements made under privilege," he told the Irish Times.

The case mirrors that involving the 2009 row involving oil firm Trafigura, which caused a storm when its lawyers told The Guardian newspaper that a super-injunction it had obtained banning the newspaper
– and "persons unknown" – from reporting on various issues also had the effect of stopping it reporting on a Parliamentary question tabled by Labour MP Paul Farrelly.

That claim caused a storm of protest about attempts to infringe Parliamentary privilege and block freedom of speech.

But the row failed to clarify whether newspapers would be at risk of an action for contempt of court by reporting information covered by a High Court injunction.

While MPs have absolute privilege for statements they make in the House, the issue is far less clear cut in relation to media reports of those statements.

Fair and accurate media reports of debates and statements in Parliament are covered by qualified privilege – meaning that news organisations cannot be sued for defamation unless a potential claimant can show that the material was published maliciously, that is, with an improper motive.

But there is no clear protection from an action for contempt which might arise as a result of a news report containing information given in Parliament which, outside Parliament, would be a breach of a High Court injunction.

This confusion now appears to apply to the risks of contempt in relation to reporting both Parliament and the Oireachtas.

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