The Irish Times, Kate Fitzgerald and Defamation

I’m no legal expert. In fact, law confuses and annoys me. It’s a minefield of overly complex jargon. But that’s not going to stop me trying to figure it out. I have to for college you see, so this is really just studying in public. I think Kate Fitzgerald’s article makes an interesting case study, considering the arguments that it should have been left in its original state, and conversely that events after its publication made that impossible.

I would also remind anyone reading that Kate’s words about her illness and their wider social meaning are far more important than any legal matters. 


The Irish Times printed an article from an anonymous (at the time) source on September 9th. The article was a personal account of how mental health is perceived in a work environment, from the perspective of someone returning to work after attempting to take their own life. It did not name an employer, or even hint at one.

On the 26th of November The Times revealed the anonymous source of the article as Kate Fitzgerald. This upset her employers. The Irish Times edited Kate’s original article on the 28th of November, removing anything which might be construed as damaging. According to Broadsheet.ie, who have done a wonderful job of reporting the story, Peter Murtagh, who wrote the piece on the 26th was advised by The Times’ own lawyers to edit the article of the 9th – Kate’s. This is after Kate’s employer “’registered its unhappiness’ about the allegations contained in Kate’s original article.”

I’m sure you know the story well at this point as it has become a major talking point online thanks to broadsheet.ie and social media. I won’t pour scorn on The Times, plenty have already done so. No, this is merely a study exercise for a student of media law. Armed with a basic knowledge of the legal system then, I’ll try to make a point. The Irish Times could have fought, and had a reasonably good chance to win, a defamation case.

The defamation act 2009 states that “defamation consists of the publication, by any means, of a defamatory statement concerning a person to one or more than one person”. Simple enough, and later on ‘person’ is elaborated on to include a body or group. So, as The Times stated, suggesting that the employer “has let the author (Kate) down as she struggled with her illness”, can be construed as defamatory.

Were The Times not to simply apologise for certain aspects of the article, I assume they would have faced a defamation case. I’d imagine this is why their lawyers suggested that Kate’s piece be edited. Fair enough for The Times, defamation cases are lengthy and expensive, but what has angered so many (evidenced by the comments on the Times’ facebook page) is their treatment of the situation.

The Times apologised to The Communications Clinic, Kate’s employers, stating that “significant assertions within the original piece were not factual. It is clear that their publication was significantly damaging to the staff and management of her employer, the Communications Clinic”. They don’t mention what exactly was not factual, but we assume it is what was cut from Kate’s article.

Ken Griffin, a former journalist and now lecturer on media law, has detailed what he sees as the reasoning for the Times cutting Kate’s article and claiming factual inaccuracies in his blog, so I won’t go into it any further than to re-iterate his point that “when challenged by Kate’s parents to pinpoint the factual inaccuracies in Kate’s piece, O’Sullivan was unable to reply. The fact is that there don’t appear to have been any.” But, as he says, Kate can’t be defamed in death.

Returning to a potential defamation case brought by Kate’s employers, which as I said, would probably have been the result of The Times not altering Kate’s article, how could they have defended themselves?

The simplest defense is truth. If the assertions made in the article are true, then case closed, Times win. The burden of proof is on The Times however, and proving that Kate’s words are true without Kate present to verify her claims would be very difficult. It would require someone speaking out against the company they work for, and that still may not be enough to win the case.

Honest opinion would appear to be more useful in defending Kate’s piece. “It shall be for the defendant to prove that, in the case of a statement consisting of an opinion, the opinion was honestly held.” The problem here is that the defamation act goes on to say that “The defence of honest opinion shall fail, if the opinion concerned is based on allegations of fact unless the defendant proves the truth of those allegations, or where the defendant does not prove the truth of all of those allegations, the opinion is honestly held having regard to the allegations of fact the truth of which are proved.”

Basically, it’s the same as truth, the allegations made about her employer would need to be proven to be true, and that would be incredibly complicated for The Times.

There are two defences which may have helped, and could help the Times were they to un-edit (for want of a better word) Kate’s article. The first is innocent publication. It’s a simple enough defense; that the person who published the article did not have reason to think the article was defamatory. And it would be a perfectly adequate defense had Peter Murtagh not made the decision to reveal Kate’s identity.

This is where things get messy. In revealing Kate’s identity, her anonymous article became, arguably, defamatory by revealing enough information to identify her employer. This was enough for The Communications Clinic to register their unhappiness with The Times, and led to the editing of Kate’s article, then the infamous apology. Since the article was online, it could be edited, and since the law isn’t clear in this area, it was. In print, an apology would suffice, and TCC would have a right of reply to share their side of the story.

It may have been a workable defense, but far more useful is ‘Fair and Reasonable Publication on a Matter of Public Interest’. The defamation act says it better than I ever could. “It shall be a defence to a defamation action for the defendant to prove that the statement in respect of which the action was brought was published in good faith, and in the course of, or for the purpose of, the discussion of a subject of public interest, the discussion of which was for the public benefit.”

Well, we know the article was published in good faith, that much is certain. It was also a clear effort to encourage public discussion on mental health problems in the workplace. So, was the discussion for the public benefit, because that would be an important part of a defense? In 2010 the Central Statistics Office reports that 485 people took their own lives. A survey conducted by See Change in the same year reports that “just one in five said they’d be very comfortable working with someone with depression”.

These offer just a minor illustration of what clearly is in the public interest to be discussed. Mental health stigma exists, and if See Change’s survey is accurate, is poorly handled in the workplace. This is not a defense without problems either though, there are a number of reasons listed in the act which can be used to dispute it.

Still, the original article did not defame, only in retrospect did it have that potential. It meets the criteria of fair and reasonable publication, and should have remained intact on that basis – for me at least. Of course, I have already mentioned that I am somewhat legally challenged, but it was a useful exercise I think, to study out loud this way, and look at what the Times could do to defend itself against any defamation case.

Hugh Linehan, Irish Times Online Editor, has outlined the reasons behind the editorial choices made, and legally, it’s difficult to disagree. It’s an incredibly complex situation because the later article changed the nature of the earlier piece. Certain parts will, I’m sure, continue to cause issue. The apology to The Communications Clinic particularly, because, as writer Susan Lanigan succinctly puts it “a national newspaper apologised to the PR company for whom she worked. In doing so, they called a dead girl a liar.”

Not to ignore the counter-argument, Colette Browne wrote on December 5th that “With Fitzgerald’s final message now in danger of being lost beneath the self-righteous din of vitriolic abuse being leveled at the Irish Times, it’s time to accept that newspapers can’t willy nilly print whatever they want, no matter who the author happens to be, and instead focus efforts on keeping the issue of suicide on the national agenda.”

I’m not sure I agree that her message has been lost, it’s probably reached more people by virtue of the mess The Times made of the situation, but perhaps it has been diluted by the focus switching to media law. That newspapers can’t print what they want however, is true, and I certainly won’t claim that my efforts to offer a legal defense would actually stand up in a court, or that it’s the only factor to be considered in The Times editing Kate’s article. Again, I’m nowhere close to being an expert on the law.

I will however, take the chance to re-iterate Ms. Browne’s point – focus on keeping suicide on the national agenda, as well as mental health in general. Stigma in the workplace and in society at large won’t go anywhere if that doesn’t happen. That’s what I’ll take from this bizarre affair, and I hope others will do the same.

If you’ve been affected by any of the issues related to mental health brought up here, please don’t hesitate to contact any of these organisations for support.

Samartians

Pieta House

1Life

Happy Christmas,

James

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Comments
4 Responses to “The Irish Times, Kate Fitzgerald and Defamation”
  1. Susan Lanigan directed me towards this post – was specifically looking for someone who’d actually looked at defamation law in relation to this case. Very interesting and informative post, thank you.

    • James says:

      Thanks, as I said though, I’m far from an expert, I’d like to see what someone with a legal background makes of it all.

  2. Also just to add that lack of citing what was ‘not factual’ is not surprising – saying, for example, ‘we can’t prove that the actions of the Communications Clinic were illegal, as claimed’ could be viewed as drawing more attention to the originally defamatory bits. (That’s also tricky wording when it comes to using honest opinion as a defence, though obviously it wasn’t the only part cut.)

  3. Mike Sivier says:

    As an outsider reading this from an interest in combating workplace bullying, it saddens me that Miss Fitzgerald’s message got lost behind the legal posturing. I’ve written a piece about it, and if anyone’s interested it can be found here: http://wp.me/p262ZD-1c
    I’d be interested to receive any constructive comments.

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