Why did the Sinn Féin MLA Gerry Kelly sue freelance journalist Malachi O’Doherty for libel?
“It is difficult to discern any valid reason,” was the judgment of the Master of Belfast’s High Court, Evan Bell, on Monday; he struck out the action against O’Doherty on the basis that it was “scandalous, frivolous and vexatious”.
The Master’s assessment was that “on the balance of probabilities ... the proceedings do bear the hallmarks of a Slapp and have been initiated not for the genuine purposes of vindicating a reputation injured by defamatory statements, but rather for the purpose of stifling the voices of his troublesome critics.”
A Slapp – a strategic lawsuit against public participation – is the rather apt term given to lawsuits brought, as a UK government policy paper put it last year, “with the intention of harassing, intimidating and financially or psychologically exhausting opponents via improper use of the legal system”.
Kelly, a convicted IRA bomber, claimed O’Doherty defamed him in two radio interviews in 2019 when he said Kelly shot a prison officer, John Adams, during the 1983 IRA escape from the Maze/Long Kesh prison.
He was acquitted of attempted murder in the 1980s, but Master Bell found the content of two books Kelly had written about the escape “appears to make Mr Kelly civilly liable, on the balance of probabilities, for the shooting of Mr Adams”, therefore rendering defamation proceedings “completely untenable”.
In his response to the ruling, Kelly said that it was a “substantive judgment and I will take time to study it with my legal adviser”.
The assistant general secretary of the National Union of Journalists Séamus Dooley hailed the determination as “extremely significant” in the context of “ongoing concern” at the use of Slapps against journalists.
The “unambiguous language used in the determination should give those intent on using Slapps pause for thought”, he said.
In recent months, Sinn Féin figures have both won and lost defamation actions. At least six cases are in progress, taken by, among others, the party leader Mary Lou McDonald against RTÉ, former leader Gerry Adams against the BBC, and by Gerry Kelly against Ruth Dudley Edwards in an action similar to the O’Doherty case.
Following a lawsuit lodged against The Irish Times and its journalist Harry McGee by Sinn Féin TD Chris Andrews in November, free speech organisations wrote to McDonald to express its concern that “legal actions that Sinn Féin’s members are currently taking against the media have the hallmarks of Slapps” and their number “points to a co-ordinated campaign”.
This was strongly rejected by the North’s First Minister designate, Michelle O’Neill, this week, who told reporters: “In terms of any concerted effort or deliberate attempt on our part, I’m Sinn Féin vice-president, I’m a senior member of a party, and I can assure you there is no joined-up or concerted effort to silence anybody.”
Any cases, she said, were “taken on people’s individual basis, it’s not about Sinn Féin supporting these cases, it’s about individuals defending their own names”, and defended their right to do so.
“Any of us – whether you’d be in public office or a citizen of our society – everyone’s entitled to defend their good name.”
This is, of course, true.
“It would be grossly unfair to say that all Sinn Féin cases are not genuine,” says high-profile Belfast media lawyer Paul Tweed, who has represented former taoisigh, former first ministers and Adams, the then Sinn Féin president, as well as numerous journalists.
“Every case brought by Sinn Féin, or by the DUP, or by whoever you want to name, has to be judged on its merits. I would not be prepared to say look, this is a warning to Sinn Féin, or anybody else. This is a warning to everybody.”
Speaking to the Irish Times, Tweed estimated the costs facing Kelly to be anywhere between £150,000 (€175,000) and £200,000 (€233,000).
The Sinn Féin press office was asked if the party would assist Kelly in paying his now substantial legal costs.
“No. Legal actions are entirely a matter for individuals involved, as we have made repeatedly clear,” a spokesman for the party said.
In terms of Sinn Féin, if, as the party asserts, there is no strategy in the first place, then it is impossible for it to be rethought. Yet given that the purpose of a defamation action is to defend a reputation, there will be those within Sinn Féin who realise that the negative publicity attracted by such cases is doing the party’s reputation no good.
“They have denied this is Sinn Féin policy, that it is anything to do with Sinn Féin and it is an individual thing, and I haven’t got the proof to refute that,” says O’Doherty.
“But the frequency with which Sinn Féin people have been taking actions has alarmed the country, has alarmed the media world. Certainly this is a ‘quare slap in the bake’ for them and must give them some pause for consideration. The outcome of Kelly’s venture is the humiliation of Gerry Kelly, so if it is a strategy, it’s now shown to be bad strategy because it can blow up in their faces.”
Eoin O’Dell, the assistant professor of law at Trinity College Dublin who was a signatory to the November letter to McDonald, said the decision of the Master was a “very important signal” from the Northern courts “that this is likely to count as a Slapp from now on”.
In the North, Slapps are under examination as part of a review into the workings of the Defamation Act 2022; in the South, measures against Slapps are included in the Defamation Bill, which has not yet become law.
Nik Williams, policy and campaigns manager at the Index on Censorship, the watchdog that has filed media freedom alerts to the Council of Europe over the Kelly case among other Sinn Féin defamation actions, said the court ruling was an “important first step”.
The court judgment has “positively raised the visibility of Slapps and shows why we need a legislative underpinning”, he said.
For Tweed, the judgment demonstrated that the judicial system is working as it should. Though “Slapps should be discouraged at all costs”, he said that anti-Slapp legislation was “not required” either North or South “because there is more than adequate discretion of the court to deal with it, as happened in Gerry Kelly’s case”.
“The judge could not have been clearer when he described this as a Slapp and he’s punished him accordingly,” said Tweed.
“This was an incredibly weak defamation case anyway,” said O’Dell. “It was clearly overreach, and that is effectively what the court said, so Sinn Féin might be more circumspect [in future].
“But the level of criticism over something like the case against Harry McGee is likely to be just as strong a factor.
“We’re looking at a general election sooner rather than later, and Sinn Féin has a carefully curated image, it might be one consideration among a whole range of considerations that will help them to a position where they are less likely to take weaker cases.”
O’Doherty said that the “device of challenging” these cases as “vexatious” has been “demonstrated to be very effective”.
“What we have shown is that we can head off these writs by going to the Master’s Court and getting them struck out, nipped in the bud,” he said.
“So hopefully other people who are under the kind of long-drawn-out pressure that I was under, hopefully they will be more aware of that device, and more willing to use it.
“I do think this will make political activists and republicans who seem over-eager to take these cases, I think this will definitely make them think again.”
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