Denise Cogley (plaintiff) v Radio Telifís Éireann (defendant): John Aherne, Genevieve Aherne and Sovereign Projects Limited (plaintiffs) v Radio Telifís Éireann (defendant).
Injunction - Applications seeking prior restraint of broadcasting/publication of material on television - Claim of defamation - Claim of a breach of a right to privacy - Criteria for granting restraint orders - Freedom of expression - Public interest - Adequacy of damages - Balancing of competing rights - Test to be applied when interlocutory injunction restraining further trespass on premises is sought - The Broadcasting Authority Act 1960, (No.10) - Broadcasting Authority (Amendment) Act 1976, (No.37 ), s.3 - Bunreacht na hEireann 1937 - The European Convention on Human Rights.
The High Court (before Mr Justice Clarke); judgment delivered June 8th, 2005.
There is an obligation on a court only to grant prior restraint orders after what is described as "careful scrutiny". Given that obligation, the court should be reluctant to grant interim orders, which would have the effect of restraining in advance, publication in circumstances where the intended publisher has not had an opportunity to be heard. Where at all possible the court should attempt to afford the defendant at least some opportunity to put its case before the court prior to making any form of restraint order.
In circumstances where the programme proposed to be broadcast may have been obtained in breach of the plaintiff's rights, the court when considering the grant of an injunction is required to weigh and balance the competing rights and values at stake. In that assessment the context and circumstances in which the impugned methods were employed, any special public interest considerations for broadcasting the programme, and the adequacy of damages as an available remedy for any wrong proved at trial, are amongst the considerations which must ordinarily be weighed.
The High Court (Mr Justice Clarke) so held in refusing the plaintiffs' applications for an interlocutory injunction restraining the broadcast and granting the plaintiff's application (in the Aherne proceedings) from engaging in any further trespass on the premises of the said plaintiffs.
Frank Callanan SC with James Phillips BL for the plaintiff (Cogley Proceedings); Patrick Keane SC with Raymond Delahunt BL for the plaintiff (Aherne Proceedings); Mark Connaughton SC with David Keane BL for the defendants.
Mr Justice Clarke began his judgment by outlining that both proceedings commenced on Friday May 27th, 2005, and related to, what was at that time, an intention on the part of RTÉ to broadcast a programme on Monday May 30th concerning a nursing home at Leas Cross. The plaintiff in the first proceedings ("The Cogley proceedings") was a director of nursing at the Leas Cross Nursing Home situated in Swords, Co Dublin. She was appointed as assistant director of nursing at Leas Cross taking up duties on November 8th, 2004. She was promoted to director when the existing office holder resigned and took up that appointment in the latter part of March, 2005. Mr Justice Clarke noted that Ms Cogley was a nurse in Leas Cross for less than seven months prior to the events that gave rise to the proceedings and was director of nursing for approximately six weeks. The plaintiffs in the second proceedings ("The Aherne Proceedings") were the owners and occupiers of the nursing home and carried on the business of a nursing and retirement home at the Leas Cross premises having established same in April, 1998.
Mr Justice Clarke then outlined the initial ex parte applications made in both proceedings on May 27th, the day proceedings issued. Both sets of plaintiffs sought short service of a motion seeking interlocutory relief and same was ordered to enable the matter be heard on Monday May 30th prior to the time the broadcast was intended by the defendant to go out at approximately 9.30pm. As both applications related to the same intended programme they were heard together. The plaintiffs in the Aherne proceedings also sought an interim order, which was refused.
Mr Justice Clarke then said that in addition to the jurisprudence of the courts in this jurisdiction it was now also necessary to consider the position pursuant to the European Convention on Human Rights in relation to the grant of prior restraint orders. These are orders which restrain, in advance of the broadcast or publication of material. Mr Justice Clarke stated that it is clear that there is an obligation on a court only to grant such orders after what is described as "careful scrutiny". Given that obligation it seemed to him that the court should be reluctant to grant interim orders which would have the effect of restraining in advance publication in circumstances where the intended publisher has not had an opportunity to be heard. For those reasons it seemed to Mr Justice Clarke that where at all possible the court should attempt to afford the defendant at least some opportunity to put its case before the court prior to making any form of restraint order although recognising that there will, of course, be cases where that is simply not possible, the time between the initial application to the court and the intended publication or broadcast may, in practice, being too short.
In such circumstances the court may still have to consider granting an interim order. Then, at the interim stage, in addition to the general considerations which the court must have in mind in granting a prior restraint order, the court should have regard to the question of whether the fact, if it be so, that there was not time to put the defendant on notice, can in any way be attributed to a default or delay on the part of a plaintiff. Thus, if a plaintiff delays in applying to court in a manner which effectively precludes the court from ensuring that the defendant is given an opportunity to be heard prior to any order being made, that fact of itself must be taken into account as a significant factor which would lean against the grant of an interim order.
Furthermore, where any delay on the part of a plaintiff, which while not so severe as to preclude the court from affording the defendant an opportunity to be heard prior to the consideration of the making of an order, nonetheless places the defendant in a position where he may be prejudiced in the presentation of his case at a hearing to determine whether there should be prior restraint, is also a factor that will have to be taken into account in appropriate cases. Mr Justice Clarke said that there was no delay on the part of the plaintiffs in the instant case.
Mr Justice Clarke then addressed the matter of urgency. Both plaintiffs contended there was no urgency by virtue of the fact that the programme could be broadcast at some other time. Mr Justice Clarke said the court must have regard to two different types of urgency. The first is whether a short delay in a broadcast or publication may not be necessary to ensure that proper scrutiny should be exercised at an interlocutory stage in determining whether a broadcast/publication should go ahead. No application for a short delay was made in the instant case. Mr Justice Clarke emphasised that the court should not lightly interfere with an intended time of broadcast/publication without substantial reasons. In this case Mr Justice Clarke did not believe that such a short delay would have been justified nor did he believe there was any real likelihood that this judgment could have been altered had such a delay occurred.
Nonetheless, he noted that in an appropriate case it may be that the balance of justice would require a very short restraining order to enable proper analysis to be engaged in at the interlocutory stage. Mr Justice Clarke went on to state that the sort of delay likely to be encountered prior to trial and subsequent to an interlocutory order is an entirely different matter. The broadcast of a programme some significant period after its intended original date amounts to a significant interference in both the freedom of expression of the broadcaster and in cases where the issue arises, the public interest in the timely dealing with the matters raised in the broadcast. In that sense it seemed to Mr Justice Clarke that the granting of an interlocutory injunction would give rise to a significant detriment to the defendants by imposing an appreciable delay in the time at which the material could be broadcast.
Mr Justice Clarke then referred to the programme in question and stated it was clear from affidavit evidence at the hearing that RTÉ intended to broadcast a current affairs programme in the Prime Time Investigates series on the standard of contemporary nursing home care in general and the management and operation of the Leas Cross Home in particular. RTÉ contended the programme covered a number of areas of significant and legitimate public interest. A copy of the programme was exhibited in affidavit and was viewed by Mr Justice Clarke without objection by counsel for the plaintiffs. Mr Justice Clarke stated there could be little doubt that the programme made very serious allegations about the manner in which the nursing home was operated over a significant period of time. A significant amount of the footage appeared to have been filmed secretly by a care worker engaged by RTÉ to take up a job at Leas Cross. A significant amount of the remainder of the broadcast involved expert commentary on the footage, shown and not shown.
In the context of those background facts Mr Justice Clarke then examined the respective claims made in the proceedings. Both plaintiffs sought ultimately to restrain the broadcast of the programme in question though on different bases. The plaintiff in the Cogley proceedings sought an injunction to prevent broadcast so she might not be defamed. The plaintiffs in the Aherne proceedings relied upon the fact that a significant volume of material shown was obtained by use of a secret camera and contended it was obtained in breach of the plaintiff's right to privacy and publication should be restrained. They did not disavow a defamation leg to their case though, indicating that their case was not originally made in defamation as they did not know with precision the content of the programme, a copy of same only being available to them to view on the morning of the hearing. Mr Justice Clarke felt, in those circumstances, it was appropriate to consider whether it was likely that the plaintiffs in the Aherne proceedings would have been able to maintain a claim to restrain the programme on the basis of defamation.
Mr Justice Clarke stated that the law in relation to the grant of an injunction at an interim or an interlocutory stage for the purposes of restraining potentially defamatory material has been the subject of a number of determinations in recent years and that from the perspective of those seeking such an order the high water mark was Reynolds v Malocco and Others (unreported, High Court, Kelly J. December 11th, 1998). Mr Justice Clarke stated that it is clear from the judgment in that case that a plaintiff must not only show that he or she has raised a serious issue concerning the words complained of, but that it must also be shown that there is no doubt that they are defamatory. An injunction will lie only in "the clearest cases". Mr Justice Clarke was satisfied that the reference in the authorities to a clear case meant a case where it is clear that the plaintiff will succeed and where, therefore, it is equally clear that none of the possible lines of defence which may be open to a defendant could reasonably succeed. Mr Justice Clarke stated that Kelly J. in Reynolds v Malocco did not depart from that principle and rejected the proposition that a mere assertion of an intention to justify was, of itself, sufficient. Although damages were the ordinary and appropriate remedy for defamation, Mr Justice Clarke said that even in a case where it can be clearly shown that the defendant would have no defence the court retains a discretion, which can be exercised having regard to all the circumstances of the case.
Mr Justice Clarke then analysed the Cogley case and noted that the programme did make clear she only held the office of director of nursing for six weeks. Two separate extracts from the programme filmed secretly showed Ms Cogley exhorting members of staff at general staff meetings to improve their standards. Mr Justice Clarke said it was open therefore on one view to consider the programme as one depicting Ms Cogley as someone placed in a very difficult situation of attempting to deal with a nursing home in which very low standards had applied for a significant period of time.
Mr Justice Clarke noted that a great deal of the programme consisted of either interviews with relatives of persons who were patients at the home, secretly filmed footage described above and comments of experts.
Mr Justice Clarke then turned to the Aherne proceedings which were largely based upon a contention that key aspects of the programme (the secretly filmed footage), were obtained in circumstances which amounted to a breach of the plaintiffs right to privacy and were also unlawful as having been obtained while the person concerned was a trespasser together with the contention that there was a breach of the right to privacy of others (especially patients). Mr Justice Clarke said that the plaintiffs have a right to privacy as was clear from the 1960 and 1976 Acts. Mr Justice Clarke said it was also clear from Kennedy v Ireland IR 587 that a right to privacy is one of the personal rights of the citizen guaranteed by, though not specifically mentioned in, the Constitution. However, it is also clear from Kennedy that the right to privacy is not an unqualified right but is subject to the constitutional rights of others and to the requirement of public order, public morality and the common good. The obligation to respect the privacy of others in the Broadcasting Acts is also not unqualified in that it places an obligation not to "unreasonably encroach" on the privacy of an individual. Thus Mr Justice Clarke said that that while persons, such as the plaintiffs in the Aherne proceedings, have a constitutional right to privacy and an arguable entitlement to ensure that the authority did not unreasonably interfere with their privacy in the course of making and broadcasting programmes, those rights were not unqualified.
Mr Justice Clarke said it was therefore necessary to address how the right of privacy may be balanced against other competing rights and, in particular, how an assessment of the situation in respect of such competing rights should be made at an interlocutory stage such as this. Mr Justice Clarke said a useful starting point was to distinguish between a right of privacy in the underlying information whose disclosure it is sought to prevent on the one hand, and a right to privacy which does not extend to that underlying information but where it is contended that the methods by which the information has been obtained amount to a breach of privacy on the other hand. Mr Justice Clarke said there are certain matters that are entirely private to an individual and where it may validly be contended that no proper basis for their disclosure either to third parties or to the public generally exists. There may be other circumstances where the individual concerned might not, having regard to competing factors, such as the public interest, which may be involved, be able to maintain that the information concerned must always be kept private but may make complaint in relation to the manner in which the information was obtained. Mr Justice Clarke said that it seemed to him that different considerations apply most particularly at an interlocutory stage, dependent on which of the above elements of the right to privacy is involved.
Mr Justice Clarke referred to the decision of the Court of Appeal in the UK in Douglas and Others v Hello! Ltd Times Law Reports January 16th, 2001 , where OK! had exclusive rights to publication of photographs taken at the plaintiffs'wedding. Hello! obtained and were about to publish unauthorised photographs taken at the wedding. Whilst noting that the case differed from the current one in many respects, Mr Justice Clarke said the court in deciding not to grant the relief sought had regard to the fact that while the plaintiffs had an arguable case that their privacy had been infringed, it was necessary to balance that right with the right of freedom of expression and placed reliance on the fact that the jurisprudence of the European Convention on Human Rights acknowledged different degrees of privacy. The fact that the plaintiffs in Douglas had in fact allowed significant publicity to attach to their wedding lessened the right of privacy. Mr Justice Clarke said it was also clear that there were no significant public interest issues involved and that was a factor. Therefore, Mr Justice Clarke said it is clear that the weight to be attached to the undoubted right to privacy can vary significantly from case to case.
Mr Justice Clarke then looked at the reliance placed by the plaintiffs in the Aherne proceedings on the right to privacy of others (most particularly patients) whom they contended had had their rights to privacy potentially infringed by the methods adopted in the taking of the secret film and whose right to privacy would be infringed in a much greater way should the broadcast containing such film be permitted. However, Mr Justice Clarke noted from affidavit evidence that the programme in the form intended to be broadcast sought to protect the privacy interests of patients by obscuring their identities through a technical process known as pixilation or by obtaining the consent of the patient's families to the proposed broadcast or both. On the basis of the evidence before him Mr Justice Clarke said he had no reason to believe that such measures would not effectively protect the privacy rights of the patients concerned and on that basis was not persuaded he should take into account any privacy rights other than those of the plaintiffs. In saying that he emphasised that should it transpire that appropriate measures were not, in fact, taken by the programme producers for the purposes of giving reasonable and adequate protection in all the circumstances of the case to those who may have appeared on the film, nothing in this judgment should be taken as implying that such parties would be debarred from seeking a remedy in court.
Mr Justice Clarke then addressed the right to privacy of the Aherne plaintiffs themselves and said it seemed to fall into the second of the categories referred to above.
Mr Justice Clarke obtained particular assistance from the decision of the Court of Appeal in New Zealand in TV3 Network Services Ltd v Fahey (1999) 2 NZLR 129 which he said in many respects bore significant resemblance to the instant case. In that case it was held that in circumstances where the programme proposed to be broadcast may have been obtained in breach of the plaintiffs' rights, the court, when considering the grant of an injunction, is required to weigh and balance the competing rights and values at stake.
Mr Justice Clarke then addressed the question of public interest. He emphasised that at this stage anything he said concerning the content of the programme should not be construed as amounting to a finding of fact by the court or that any facts alleged have been established. He stated that it would necessarily be the case that at an interlocutory stage a court asked to assess the extent of the legitimate public interest in a particular broadcast would have to have regard to the necessarily limited information that would be available to it at that stage. However, subject to that caveat, it seemed to Mr Justice Clarke, having viewed the programme, that the following issues of very significant public importance were potentially raised by the programme:
(a) Whether the standards applied at Leas Cross Nursing Home fell, to a very marked degree, short of the standards that could be reasonably expected in such a home;
(b) the extent to which, in addition to its ordinary regulatory role, the above matters ought to have been of concern to the authorities charged with the administration of the health service by reference to the fact that, it would appear, a significant portion of the funding of the patients who reside at the home was provided out of public funds;
(c) the extent to which the existing regulatory regime in respect of such homes has been properly administered by those charged with that task; and
(d) whether that regulatory regime was, in itself, sufficient to allow for the proper regulation of the nursing home sector.
Mr Justice Clarke said it should also be taken into account in assessing the importance of the public interest issues involved that those whom it may be said would suffer should the contentions of the programme be borne out were an extremely vulnerable section of the community who had a limited, or, in many cases, no voice of their own. In all those circumstances it seemed to Mr Justice Clarke that the issues raised in the programme were those of the highest public interest and that, therefore, a very significant weight indeed needed to be attached to those matters in weighing the rights and values involved at this stage. He noted that one of the underlying reasons for the reluctance of the courts in this jurisdiction to grant injunctions at an interlocutory stage in relation to defamation stems from the fact that if the traditional basis for the granting of an interlocutory injunction (i.e. that the plaintiff had established a fair issue to be tried) was sufficient for the granting of an injunction in defamation proceedings, public debate on very many issues would be largely stifled.
Mr Justice Clarke then looked at the facts of the instant case and was satisfied that similar considerations applied in this case as in the TV 3 case. He stated doubtless the availability of the secret film could be said to add drama to the programme, and it was equally true, having regard to the very serious accusations made in respect of the management of the nursing home concerned, it would be likely that a programme containing those accusations, but not supported by the surreptitious film, would be challenged. In those circumstances it seemed appropriate to Mr Justice Clarke to describe inclusion of the surreptitious film in the Leas Cross programme as "an understandable pre-emptive course of action" whilst stating that the fact it might be understandable did not, of course, mean it necessarily follows it was justified or decisive in relation to balancing the rights and interests involved in a prior restraint application.
Mr Justice Clarke said that legitimate public interest issues of a very high weight were raised by the programme and that in any balancing exercise very significant weight must be attached to that aspect of the case. He emphasised that on similar facts, but where the material sought to be broadcast did not involve issues of significant public interest, the balancing exercise might well result in the balance favouring prior restraint.
Finally, Mr Justice Clarke said it was necessary to consider the adequacy of damages. Mr Justice Clarke said that if the accusations contained in the programme are ultimately borne out to be correct then any breach of privacy involved in obtaining confirmatory information which establishes the truth of significant accusation in the legitimate public domain would necessarily give rise to small, or even nominal damages, which damages would clearly be an adequate remedy. However, it should be noted that any publisher or broadcaster who employs such methods in persuading a court at trial as to the truth of the matters concerned exposes itself to a more significant risk in the event that the material broadcast proves to be defamatory.
Mr Justice Clarke then quoted the final paragraph in TV3 and indicated that it also represents the position in this jurisdiction:
"Our decision in this case should not be seen as supporting any general proposition that the ends of news gathering justify the means. If information has been obtained in circumstances which are at least arguably unlawful that would be an important factor to weigh in the balancing exercise involved. Such unlawfulness may amount to an offence, or it may constitute a civil wrong. The more serious the breach, the stronger will be the case for restraining use of any material obtained as a result. The courts will be careful to ensure that the rights of others are properly weighed and that the media is not simply provided with an incentive to engage in and benefit from unlawful conduct whenever it claims it is acting in the exercise of freedom of expression."
Mr Justice Clarke said that any claim to an entitlement to broadcast or publish material which has, arguably been unlawfully obtained, on the basis of a legitimate public interest will necessarily result in the court exercising significant scrutiny over the public interest asserted. Mr Justice Clarke said he was mindful of the fact that it is all too easy to dress up very many issues with an exaggerated or unreal public dimensions. However, on the facts of this case and for the reasons set out earlier, he was more than satisfied that RTÉ had shown that there were very real, significant and weighty public interest issues involved. For those reasons he refused to grant an interlocutory injunction which would have the effect of restraining the broadcast.
Mr Justice Clarke then addressed the additional claim in the Aherne proceedings wherein the plaintiffs sought an injunction to restrain further trespass on the plaintiffs' premises. Mr Justice Clarke said it seemed to him that different considerations applied in respect of this aspect of the case. Mr Justice Clarke said that an injunction that would restrain future trespass would not have an effect equivalent to prior restraint and therefore it seemed to him that the ordinary principles for the granting or refusal of an interlocutory injunction should be applied to this aspect of the case. He said the starting point must, therefore, be a consideration of whether there is any risk of future trespass. Whilst it was argued by counsel for RTÉ that there was no evidence of any such risk Mr Justice Clarke could not agree. Pending the establishment after a full trial of the lawfulness or otherwise of the use of such methods, it seemed to Mr Justice Clarke that the balance of convenience would favour restraining RTÉ from engaging in any further trespass on the premises of the plaintiffs in the Aherne proceedings.
Mr Justice Clarke concluded by stating that as is always the case at an interlocutory stage, nothing in that determination should be taken as amounting to a final ruling as to the appropriateness or otherwise of any of the actions which have in fact been engaged in.
Solicitors: McKeever Rowan (Dublin ) for the Cogley plaintiff; Paul W. Tracey (Dublin) for the Aherne plaintiffs; RTE Solicitors' Office for the defendants.
Joan Kelly, barrister