A judge has reserved judgment in the case of a former Kildare Gaelic footballer who is suing the Sunday World newspaper for defamation and breach of privacy over reports it carried that he was involved in organising swingers' parties.
Mr Justice Tony O'Connor said he was reserving his decision after hearing submissions from lawyers for both Brian Nolan (49), a native of Newbridge who played senior football for Kildare in the 1990s, and the Sunday World.
Mr Nolan, who now lives at Goatstown in Dublin 14, is suing the Sunday World over an article which appeared in the paper on July 15th, 2012, describing him as "The King of The Swingers", and another which appeared on March 3rd, 2013 on the sex trade in Ireland with the headline "Ireland Exposed."
Jim O’Callaghan SC, for Mr Nolan, said that if they showed the articles carried a number of meanings, including that Mr Nolan organised swingers’ parties, that he organised them for financial gain and that he was involved in the sex trade, then he was entitled to damages for defamation.
He said the first article said Mr Nolan organised swingers’ parties, implying he made financial gain from them, while the second article appeared in a 12-page feature which included articles on prostitution and thus linked him to the sex trade and making financial gain.
Breach of privacy
Mr O'Callaghan said he was not saying that it was defamatory to say Mr Nolan attended swingers' parties, but that it was defamatory to say he organised them. He also said the paper never gave him an opportunity to respond to that allegation as it was never put to him by reporter Niall Donald.
He said Mr Nolan was also suing on the grounds of breach of privacy, and the publication of photographs of Mr Nolan beside three bare-bottomed women in lingerie was a clear breach of his privacy as the photos were taken at a private party and he did not consent to their publication,
The courts had established a right to be left alone and there was case law from the UK in the Mosley case which found that individuals had a right to privacy in relation to their sexual activities once it was among consenting adults, as was clearly the case in this instance, Mr O’Callaghan said
He said the fact that the Sunday World had seen fit to pixelate the faces of the other people in the photograph was a clear recognition by the paper that it was breaching their privacy and yet they were perfectly happy to publish Mr Nolan's photograph.
He said that, while Mr Nolan may have been a figure of public interest when he played intercounty football for Kildare in the 1990s, he most certainly was not a public figure at the time the photographs were taken, and there was no legitimate public interest in their publication.
Common sense
Rossa Fanning SC, for the Sunday World, said that persuasive as Mr O'Callaghan's arguments appeared, the court was in effect being "asked to take leave of its common sense and enrich one of the least deserving plaintiffs to ever come before the courts in this type of case".
Mr Fanning argued the articles were incapable of the various meanings suggested by Mr O’Callaghan, except in one aspect, namely they stated Mr Nolan had organised swingers’ parties and they could not be interpreted as meaning he did so for financial gain or was involved in the sex trade.
He said Mr Nolan was trying to create “a moral space” between attending swingers’ parties and organising swingers’ parties, even though he had admitted that he had attended them for 18 months and that he had been involved in a relationship with a woman who was involved in organising them.
Mr Nolan had conceded in cross-examination that he saw little difference between attending and organising GAA table quizzes, so logically it was therefore the nature of the event, a swingers’ party rather than whether he was an attendee or an organiser that led to public opprobrium from some.
Mr Fanning said that when it came to the claim for breach of privacy, Mr Nolan had forfeited that himself by agreeing to pose for compromising photographs at a party attended by 26 strangers amongst whom the photos could have been circulated.
“His complaint cannot be that the photos of him in compromising positions were seen by strangers but that it was seen by too many strangers,” said Mr Fanning. He added that Mr Nolan had admitted in cross-examination the purpose of the photos was for them to be shared among the swinging community.
