The Julia Kushnir libel settlement tells us nothing at all about our libel laws but quite a bit about the newspapers sued. Julia Kushnir was the woman in a car with Liam Lawlor when it crashed in Moscow on October 22nd, 2005, killing Mr Lawlor and his Russian driver.
The newspapers were the Sunday Independent, the Irish Independent, the Sunday Worldand the Sunday Tribune, all controlled by Tony O'Reilly's Independent News and Media (INM) company. T he Observerand the Sunday Mirrorwere sued separately and settled separately.
The newspapers had reported on the following day (or the day afterwards) that at the time of his death, Liam Lawlor was in the company of a prostitute.
It was a piece of sensationalism, published prominently to maximise impact for the owners of the newspapers. Published without any of the elementary checks on the veracity of what they knew was mere speculation. It was reckless, deeply hurtful to the widow and family of Lawlor and deeply damaging to the reputation of Lawlor.
Of course for Kushnir, had she been identified or been identifiable, the defamation would have been outrageous. By any reckoning, damages would have been assessed in millions. And quite rightly. The suggestion that the libel laws should be changed to protect such wilfully reckless and opportunist journalism is unsustainable. No public interest was served by the publication of this material, even had it been true. And the grossly unprofessional manner in which the newspapers treated this story could not possibly be licensed by any rational reform of the libel laws.
In the most liberal libel regime in the world, the United States, the protection accorded to journalism does not encompass false material published with malice or with reckless disregard of the truth.
And in this instance there was certainly reckless disregard for the truth. For the Sunday Independent published this material not just with disregard for the veracity or otherwise of the story, but following representations to them by a former colleague of Lawlor that the story was untrue.
And, then the malice bit: the publication along with the front-page sensational presentation, of a photograph of Lawlor and his wife, Hazel, calculated to turn the knife on the grieving family and intensify their humiliation.
This was one of the nastiest pieces of journalism of recent times and one would have expected those responsible for this to have been fired promptly. Instead, we were told there would be an internal inquiry into what happened. The managing editor, Michael Denieffe (incidentally, an old friend and a person for whom I have respect), was said to have instituted an investigation and the expectation was that the results of that would be published as happened, for instance, in the Observer. Whatever inquiry was conducted within the Independent, the findings were not published. Subsequently, in the pre-trial proceedings in the Kushnir case, an application was made for the discovery of the results of this inquiry but INM claimed legal privilege and so the results of whatever inquiry was conducted remain secret to the Independent.
In fact and in law, Kushnir's case against the newspapers legally was weak. For a libel action to succeed there has to be identification and nobody who read any of the newspapers could have identified her as the alleged call-girl in the car with Lawlor.
She was not named and nothing in the report could have identified her. So, how could a libel action have succeeded? But the newspapers coughed up nonetheless and the reason they did so, obviously, was not fear that the case would succeed and Kushnir would be awarded millions in damages, but that the editorial standards that prevailed, notably in the Sunday Independent, Sunday Tribuneand other newspapers, would be exposed.
Not that this would have precipitated the firing of those responsible, because track record suggests that for so long as they turn a handsome profit for INM, editorial standards don't matter a jot.
There was some discussion over the weekend that the libel laws should be changed to prevent newspapers having to shell out hundreds of thousands for reputational damage, while grievous physical damage was compensated for by sums far less.
There is indeed a case for the reform of the libel laws where there is a public interest involved (interest as distinct from curiosity), where elementary journalistic standards are adhered to (a serious professional attempt to discover the truth of the story) and where there is no malice or reckless disregard for the truth.
But the idea that the Sunday Independentand its likes should be licensed to engage in malice, with such reckless disregard for the truth or for the consequences for what they publish, is ridiculous.