Independent Newspapers has asked the Court of Appeal to overturn fines totalling €100,000 imposed after a judge ruled certain articles and commentary published in 2014 were a contempt of court.
The fines imposed by the High Court – €50,000 on Independent Newspapers and €50,000 on an associated company, Internet Interactions Ltd – are the highest ever for contempt in the State and gave undue weight to the isuse of deterrence, Cian Ferriter SC argued.
The fines were disproportionate in the circumstances of the publication, particularly so because the High Court found there was no intention to interfere with the course of justice, and will have a “chilling” effect on reporting matters of important public interest, he said.
The Director of Public Prosecutions, through his counsel Paul O'Higgins SC, maintained the fines were warranted and there must be adequate and "meaningful" deterrents against contempt.
It was of relevance the newspaper knew, prior to publication, that a particlar person referred to had been charged, he said.
By court order, arising from an application by the DPP based on concerns of potential risk of prejudice to other proceedings, details of the content of the articles cannot be published at this stage.
A three-judge Court of Appeal, by a two-to-one majority last December, dismissed the company’s appeal against the High Court findings the articles and commentary were a contempt of court.
Gratuitous
The High Court said the articles, published after a particular person was charged, “gratuitously identified” and associated that person with particular types of behaviour relevant to charges to be considered by a jury.
The High Court accepted there was no evidence of intention by the defendants to interfere with the course of justice but said there is no requirement in law to prove intent for the offence of contempt of court.
In the majority Court of Appeal judgment upholding those findings, Mr Justice John Edwards, with whom Ms Justice Mary Finlay Geoghegan agreed, found the articles and commentary amounted to "egregious" contempt particularly because of publication after charge.
The publication created a real risk of prejudicing a trial and the matter could have been adequately reported without naming the particular person, and certainly without also offering, expressly or by implication, “gratuitous judgments as to the ethics, morality and honesty of certain persons without discrimination”, he said.
Integrity
Disagreeing, Mr Justice Gerard Hogan said the articles were “in reality just another in a long line of publication which were highly critical of certain individuals” and he could not say they presented any real risk to the fairness and integrity of a particular trial.
In the absence of such risk, the publication of the material was constitutionally protected by the guarantees of freedom of expression set out in Article 40.6.1 of the Constitution, he said.
“While the right to a fair trial must naturally be protected, we cannot live in some sort of antiseptic and sterile society where robust comment on public affairs is treated like some kind of hostile germ against which the most elaborate anti-bacterial precautions must be taken.”
Independent Newspapers had denied contempt but agreed to take the relevant articles off its website pending the court determinations.
On Wednedsay, the appeal court, after hearing further arguments concerning the fines and costs orders imposed on Independent Newspapers by the High Court, reserved judgment on those issues.
