By anyone’s assessment, the ruling was damning.
“Scandalous, frivolous and vexatious” and an abuse of process “so blatant it would be utterly unjust if the court were to allow the proceedings to continue”, was the judgment of the Master of Belfast High Court, Evan Bell, as he struck out a libel action taken by the Sinn Féin Assembly member Gerry Kelly against the writer and journalist Dr Malachi O’Doherty.
The politician claimed Dr O’Doherty defamed him in two radio interviews in 2019 when he said Mr Kelly had shot a prison officer during an IRA escape from the Maze prison outside Belfast in 1983.
Now representing North Belfast at Stormont, Mr Kelly was, in 1973, sentenced to life imprisonment for his part in the IRA bombings of two locations in London and 10 years later was involved in a mass breakout from prison, during which one prison officer died of a heart attack and another was shot.
Every journalist knows the truth is the first defence against a claim of libel. In his determination, the Master of the court established that whether or not it was Mr Kelly or his companion who actually pulled the trigger, the content of two books he subsequently wrote about the escape “appears to make Mr Kelly civilly liable, on the balance of probabilities, for the shooting of Mr [John] Adams”. In the light of this, he held, the defamation proceedings were “completely untenable”.
Moreover, given that in one of these books he “admits that during the escape he was armed with a gun and threatened to shoot a prison officer, it was therefore scandalous and vexatious for Mr Kelly in such circumstances to claim damages for defamation”.
Such proceedings, Master Bell ruled, “bear the hallmarks of a Slapp”, initiated “not for the genuine purposes of vindicating a reputation injured by defamatory statements” but to “stifle” the voices of critics.
“The proceedings appear to be a strategic effort to intimidate them, to deprive them of time and resources, and ultimately to silence them.”
Sinn Féin has denied using Slapps, or strategic lawsuits against public participation, defined last year in a UK government policy paper as “legal actions typically brought by corporations or individuals with the intention of harassing, intimidating and financially or psychologically exhausting opponents via improper use of the legal system”.
In Dr O’Doherty’s case, this was exacerbated by the practice of deploying the lawsuit against him as an individual, rather than against the broadcasters – the BBC and U105 – where the comments were made. This leaves him facing both considerable financial risk and personal stress if he chooses to defend himself. The approach has been used against journalists and political opponents, including Ruth Dudley Edwards – who faces a similar defamation action from Mr Kelly – and The Irish Times journalist Harry McGee, who was named personally alongside the newspaper in a case taken by a Sinn Féin TD in Dublin.
Sinn Féin does not have a policy of taking defamation actions against the media, party leader Mary Lou McDonald has said, but she added that “when a line is crossed... people have the right to use the mechanisms available to them to vindicate their name”.
The media, in turn, would argue that such cases have far-reaching effects on the freedom of the press, and for its core function, to hold the powerful to account – a role of vital importance when the party in question is in government in the North and hopes to soon be in the South.
Monday’s judgment was a significant defeat for Sinn Féin in the northern courts; Mr Kelly has said he will take time to study it with his legal adviser, and Sinn Féin will no doubt do the same.
It remains to be seen whether it will be enough to, in the words of NUJ Irish secretary Seamus Dooley, “give those intent on using Slapps pause for thought”.
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