Enoch Burke has lost his defamation claim against the publisher of the Sunday Independent over an article alleging he was moved jail cell for his safety because he was “annoying” other prisoners.
Mr Justice Rory Mulcahy held that the words in the story, published in October 2022, were incapable of injuring his reputation.
The judge said the seven paragraphs complained about are untrue, which is “unfortunate”, but the tort of defamation and the Defamation Act of 2009 do not provide a court remedy for simply untrue statements made about a person. For that, a plaintiff must establish that the untrue statement injured their reputation, he said.
This story came during Mr Burke’s first stint in prison for breaching a court order restraining him from attending at St Wilson’s Hospital School, which had suspended and later dismissed him after he publicly objected to being instructed to refer to a student using they/them pronouns.
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Although he was released for a short period, Mr Burke remains in jail. His situation is due to be reviewed by another High Court judge on Friday.
In a ruling on Thursday, Mr Justice Mulcahy said “it must be the case that any person’s reputation is diminished in the eyes of a reasonable member of society if they simply refuse to comply with a court order”.
A reasonable reader could not have had a view of Mr Burke’s reputation that was capable of being injured by an incorrect allegation that he had been speaking excessively about religion following imprisonment, the judge said.
“The suggestion that he severely annoyed his fellow prisoners by the repeated expression of his religious beliefs is […] a whisper in the hurricane of noise which his actions in September 2022 (when he was first jailed) created,” the judge added.
Alleging a “grave and serious libel” occurred as a result of “entirely baseless” claims, Mr Burke sued Mediahuis, as publisher of the Sunday Independent; editor Alan English and reporter Ali Bracken. The defendants acknowledged “minor” errors in the October 9th piece but strongly denied Mr Burke was defamed.
The article cited unnamed sources to say Mr Burke was moved to a new cell for his safety as he was “annoying other prisoners” and “repeatedly expressing his outspoken views and beliefs”. The newspaper apologised on January 1st, 2023, and clarified that Mr Burke’s cell change was for “operational reasons only”.
However, the defendants, represented by Ronan Lupton SC and Lewis Mooney BL, strongly denied the article was capable of defaming or that Mr Burke’s reputation was injured in the eyes of a reasonable person. They did not plead truth but argued it was a fair and reasonable publication on a matter of public interest.
Mr Justice Mulcahy found no evidence of malice or recklessness by the defendants in deciding to publish the article.
He said it was difficult to imagine how being said to repeatedly express one’s religious views could ever injure one’s reputation, as freedom of expression and religion are constitutionally protected rights.
Most significantly, any reasonable member of society knew he had not complied with a High Court order, had been imprisoned for contempt and had not purged his contempt, the judge said. This “wholly undermines” the suggestion the article damaged his reputation, he added.
Mr Justice Mulcahy clarified he was not suggesting that nothing could defame Mr Burke on account of his contempt. He said the case law makes clear that even a blemished reputation can be injured.
The article was removed promptly from independent.ie but the January apology and correction were “unduly delayed”, the judge found.
He also rejected the publisher’s contention that the piece provided any public interest benefit, and said the “fair and reasonable publication” defence would not have been open to it if the article was defamatory.
He agreed to dismiss the claim and gave a provisional view that the defendants are entitled to have their legal fees paid for by Mr Burke.
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