You can't stop the big stories
Prime Time's Leas Cross story showed that it is practically impossible to legally suppress big news, but is the manner in which stories are gained based in any ethical structure? By Conor Brady
If the proprietors of the Leas Cross nursing home had been successful in their application to have Monday's Prime Time blocked by the courts, where would the story be at now?
The essential facts of the situation would almost certainly have come into the public domain in any event. The very fact of the application having been made was sufficient to alert every newsroom in the country. Even if Mr Justice Frank Clarke had acceded to the petition of John and Georgina Ahern and of Sovereign Projects Ltd (their company), Leas Cross would have been swarming with reporters and camera crews by Monday evening.
Bits and pieces of information would have emerged here and there. Websites and "bloggers" would have picked up the story, adding their own details and opinions. Within a day or two at most, the mainstream media would have decided to publish what they knew – and to take their chances on being found in contempt of Mr Justice Clarke's ruling.
They would have calculated that even if they were cited for contempt they could make a strong case, invoking the overriding public interest, in their own defence. Given what is now known about the realities of life inside the Leas Cross nursing home, it would be a brave judge who would punish a journalist or a broadcaster for publishing the facts.
In the event, Mr Justice Clarke, having viewed the programme himself, took the view that it raised "matters of important public interest," that if the facts presented were untrue the proprietors could sue for libel and seek exemplary damages and that the courts "should be slow to grant prior restraint orders".
It might even be argued that in allowing the programme to go ahead, the court was doing the right thing for the nursing home and its directors. Instead of having the story come out in drip-feed, distorted and with rumours and exaggerations appended, it was presented professionally, coherently and fairly. If Mr and Mrs Ahern and the company still believe they have been libelled they have a clear course of action open to them and an identifiable respondent in RTÉ.
The reality, in a world of instant, universal communications, is that attempts to suppress information like this are like throwing snowballs at the gates of Hell. If it was impossible to suppress Spycatcher a decade-and-a-half ago, it is ludicrous for anyone to believe they can put the lid on discussion of crucial public issues in 2005.
Which makes one wonder, why did Mr and Mrs Ahern and their company decide to go the legal route at all? Had they accepted Prime Time's offer to put their side of the story on the programme itself, it is probable that their interests would have been better served.
It is one of the paradoxes of the legal climate that surrounds the working of the Irish media, that while our libel laws are probably the strictest in Western Europe, the courts have generally given short shrift to applications for restraint on publication. Whether it has been a wealthy businessman, seeking to block the disclosure of his tax affairs or an entertainer trying to keep a veil of confidence over his contractual arrangements, the courts have strongly held to the view that the remedy for libel is to sue for damages – not to prevent the publication or broadcast of the libel in the first place.
There have been some exceptions. A member of U2 successfully sought a court order earlier this year to prevent a tabloid newspaper from reporting details of a family illness. And – although it is not necessarily an issue of libel – the courts also recently prohibited the publication of a report on the situation of the Gama workers which had been sought by unions and media.
The jurisprudence simply reflects reality. If the media get information that is in the public interest (and not merely 'of public interest') it will come out. If it does not emerge in "alternative media" like the internet, it will come out under the cover of Dáil or Seanad privilege. It is not uncommon for journalists who have fragments of a story, to "feed" the details to a TD or Senator who will then raise the issue under privilege in the House, perhaps garnering further detail from a reluctant Minister, while bringing the issue to public notice and legitimising it for public discussion.
Prime Time has no such need of supporting parliamentary activity in relation to the Leas Cross programme. The programme was a classic of investigative reporting in which the images – graphic and authentic – were allowed to speak for themselves. There was no accompanying overkill by way of narrative or editorialising. It was a case of 'less is more' in terms of what was put on screen.
The use of subterfuge raises some questions of journalistic ethics – the programme reporter signed on as a care worker at the home. In their application to the High Court, the Aherns argued that RTÉ had trespassed, engaged in subterfuge and used unlawful means to gather information. RTÉ has pointed out that their reporter is, in fact, a trained care-worker.
Many editors and programme-makers feel uncomfortable about the use of subterfuges. The NUJ Code of Behaviour does not explicitly forbid it but it does discourage it. Some US newspapers outlaw it completely for their reporters.
The concept of proportionality comes into play here, I suggest. Most journalists would probably agree that it would be wrong to gain access to a family home by pretending, for example, to be a nanny, in order to write a showbiz feature. But the issues in a case like Leas Cross are so serious that they far outweigh any other consideration.
It is clear that if Prime Time had not made this programme, the residents of the nursing home would have been a long time waiting for the relevant authorities to take action.p
Conor Brady is Emeritus Editor of the Irish Times. He is a senior teaching fellow at the Michael Smurfit Graduate School of Business, UCD, where he lectures in modern media