Denis O’Brien action cuts to the heart of privilege

Anyone studying journalism or law will learn very early in their studies about the concept of privilege. It comes in two forms – qualified or absolute.

If absolute privilege attaches to the event the reporter is covering it is bomb-proof when it comes to defending a defamation action.

Unfortunately – from the reporter’s viewpoint! – only two institutions are covered. One is the courts. The other is the Oireachtas.

It works on two levels. Anything that is said in Court cannot be subject to a libel action, including what it said by the judge.

The same goes for parliament. A TD or Senator can’t be sued for what they have said in the Dáil, not matter how scandalous or destructive it is. It is also open to abuse, which is a downside, but is a necessary evil.

And that very great latitude is also supposed to be extended to the press. If the comments made in the Courts or in the Oireachtas are reported fairly, accurately and contemporaneously it follows that those reports will also be privileged.

The logic of that is that reporters are (or were!) the conduit between the institutions of the State and the public. There is no point in Court being held in public, or public representatives making public statements, unless the public is in a position to know.

A can of worms is only the start when we start trying to work our way through the controversy that has exploded in the past week over what the independent TD Catherine Murphy said in the Dáil.

My own opinion is  the suppression of reporting on what she said is scandalous and an outrage – and strikes against the right of free speech and against the autonomy and robust independence of one of the pillars of our democracy – Oireachtas Eireann.

Firstly, there is no doubt that she was within her rights to say what she said.

Article 15 of the Constitution states:  “The members of each House of the Oireachtas shall, except in case of treason as defined in this Constitution, felony or breach of the peace, be privileged from arrest in going to and returning from, and while within the precincts of, either House, and shall not, in respect of any utterance in either House, be amenable to any court or any authority other than the House itself.”

The application is a wide one. Parliamentarians can’t be arrested on their way to or from Dáil business. That provision has its roots in the civil war and was designed to prevent forces acting for a particular faction from arresting a member of another faction in order to prevent him or her voting in the Dáil.

It’s the second half of the Article that is most pertinent here. Essentially, no statement or comment made in the house can be challenged in the courts or elsewhere.

The language is explicit. It also means that no TD or Senator can find themselves at the wrong end of a libel action for something they said in the house.

For more, read this week’s Connacht Tribune.