Almost a decade has passed since an unlawful data breach at Independent News & Media (INM) that set off an avalanche of legal claims and a High Court inspection in Ireland’s biggest newspaper publisher.
Now new information has come to a light about a dispute over the scandal between INM and Leslie Buckley, the one-time chairman who represented the interests of former main shareholder Denis O’Brien. The company has made damning claims against Mr Buckley, accusing him of “grossly” breaching his duties to the business and making “blatant misrepresentations” in relation to the affair.
After a Belgian group bought INM in 2019, the company is known these days as Mediahuis Ireland. The new owners of the Irish Independent and Sunday Independent are by now well established in the business. But they are still dealing with the fallout from a disastrous governance breakdown that goes back to October 2014, when Mr O’Brien was the dominant force in INM after ousting former chief Sir Anthony O’Reilly in a bitter corporate war for control of the group.
Mr Buckley, a long-time corporate ally of Mr O’Brien, has long claimed he was scapegoated by INM when it blamed him for the data breach.
[ Gavin O’Reilly and Karl Brophy settle claim for damages against Mediahuis Opens in new window ]
INM, which initiated legal action against the former chairman five years ago, has accused him of placing “his own personal interests ahead of the interests of the company of which he was chairman to its substantial detriment.” In legal correspondence with Mr Buckley’s representatives, the company has also said his actions raise “the issue of whether the searching was conducted for and on behalf of the major shareholder of INM for his personal benefit”.
There was no immediate response from Mr O’Brien’s spokesman when asked for comment on that claim.
There was no Mediahuis Ireland comment on the conflict with Mr Buckley.
After the former chairman lost a court bid in 2021 to have inspectors removed from the company, there is no end in sight to his troubles arising from the data violation. Mr Buckley has always denied any wrongdoing. His spokesman declined to answer questions on the latest developments, saying comment was not appropriate because of the High Court inspection.
At issue is the removal of backup IT tapes from INM, which ended up in the hands of third-party companies for “data interrogation” on emails relating to 19 named individuals. Among them were journalists, lawyers and former INM officials, some of whom had come into conflict with Mr O’Brien.
The 19 included former INM chief executive Gavin O’Reilly, a son of Sir Anthony, and Karl Brophy, a public-relations consultant who had a senior management job in the business. In recent weeks they settled a claim for damages against Mediahuis Ireland and Mr Buckley, ending a case that has cast new light on the conflict between the company and its former chairman.
Others in the 19 include current and former INM journalists Sam Smyth, Brendan O’Connor and Maeve Sheehan, former Moriarty tribunal lawyers Jerry Healy SC and Jacqueline O’Brien SC, former top INM executive Vincent Crowley and public relations consultants Rory Godson, Mark Kenny and Jonathan Neilan.
In one important ruling on the sprawling affair, then High Court president Mr Justice Peter Kelly said the “rights and entitlements” of some or all the people “may have been transgressed in the most serious way”.
The objective remained unclear but was “certainly suggestive of the company’s affairs being conducted for a purpose that is unlawful,” Mr Justice Kelly said.
After a separate inquiry, Data Protection Commissioner Helen Dixon found the email search had breached privacy law and had no legal basis.
The recent deal with Gavin O’Reilly and Mr Brophy was brokered by former chief justice Frank Clarke, who has resumed work as a barrister and provides mediation services. Such mediation can be akin to shuttle diplomacy between protagonists in a legal case as the parties seek a financial deal to end the dispute.
[ Brendan O’Connor files High Court action against Mediahuis over 2014 data breachOpens in new window ]
The O’Reilly/Brophy settlement includes payments in respect of claimed damages said to be in the order of several hundred thousand euro for each man. It is also understood to include significant legal fees racked up by Gavin O’Reilly and Mr Brophy, also said to run to several hundred thousand euro.
Add in large legal fees incurred by Mediahuis Ireland and Mr Buckley and it is clear that this has been an expensive and damaging episode for the business and its former chairman.
But that is not the end of the matter. Far from it. Although the company and Mr Buckley have settled claims made by some of the 19, other cases are still in the works. The company first approached litigants more than two years ago signalling its interest in exploratory talks about their claims.
All of this is playing all out behind the scenes as High Court inspectors continue their investigation, which began almost five years ago. The latest indications suggest a final report on the debacle might not be issued until some time next year.
The appointment of inspectors followed whistleblower complaints to the Office of the Director of Corporate Enforcement, the State body responsible for enforcing business law which is now known as the Corporate Enforcement Authority. Only after the inspectors submit their report will the authority decide whether any action should to be taken to hold any individual or corporate entity to account for their role in the affair.
Then there is the dispute between the company and Mr Buckley, who claimed the data interrogation was part of an exercise to cut legal costs in the business. That claim was dismissed long ago by INM as it blamed Mr Buckley for the affair, writing in April 2018 to some people whose data had been breached to say the action had been “unauthorised” and had happened “on the instruction of the then-chairman”.
The letter in question was reported by The Irish Times at the time and the claims were repeated in the Dáil.
Court records opened in Mr Buckley’s case against the appointment of inspectors, which were later provided to Gavin O’Reilly and Mr Brophy as part of their action, show Mr Buckley took grave exception to such claims by INM. His solicitors A&L Goodbody wrote to the company saying he “was extremely surprised and disappointed that INM would publish such a letter without affording him any opportunity to address the very serious allegations INM apparently made against him.”
The next month, however, IMM solicitors McCann FitzGerald wrote to Mr Buckley’s representatives citing “new information” which indicated his assurances and explanations to the company about the data breach “were inaccurate and misleading”.
The letter said the evidence now available was “inconsistent with the asserted purpose of the exercise”.
It went on to cite advice from the company’s IT department “that there would unlikely be any relevant data on the tapes did not deter your client from proceeding with the data searching exercise” and said Mr Buckley had communicated directly by text message in relation to it.
“It must be apparent to you and your client that the documentary evidence now available in relation to this data searching exercise directly contradicts your client’s previous statements,” the McCann FitzGerald letter said.
“He has in concert with other individuals unlawfully arranged for the collection and searching of INM data in breach of the Data Protection Acts and in breach of his fiduciary and statutory duties as a director of INM. He has caused INM very significant damage and losses which are directly attributable to your client’s conduct and has jeopardised the viability of INM and the privacy, personal safety and livelihoods of many people.”
The final reckoning is still some time away but it will have grave implications for Mr Buckley and his accusers.
