The Leas Cross judgment strengthens genuine investigative journalism, writes Carol Coulter, Legal Affairs Correspondent.
Mr Justice Frank Clarke yesterday delivered his judgment in a case where he had already announced his decision concerning an attempt by the owners of the Leas Cross nursing home to prevent the airing of an RTÉ programme.
The programme went out on Monday week last, revealing apparent instances of substandard treatment of the patients in the care of the nursing home, following Mr Justice Clarke's decision not to stop the programme.
The owners of the Leas Cross home, John and Genevieve Aherne, had sought an interim injunction preventing the programme being broadcast on the basis that it was obtained in breach of their right to privacy. The director of nursing in the home, Denise Cogley, sought the injunction on the basis that it defamed her.
Mr Justice Clarke first dealt with the hurdle that had to be crossed by someone seeking to prevent a publication or broadcast on the grounds that they had been defamed. He set this hurdle quite high. The plaintiff would fail to cross it, he said, "if it appears that there is any reasonable basis for contending that the defendant may succeed at the trial of the action".
There might be a basis for expecting a successful defence on a number of grounds, which the judge outlined, including "a public interest defence" though he acknowledged that the parameters of such a defence had yet to be clearly established in this jurisdiction.
In any case, he found that the programme was open to the interpretation that Ms Cogley was in the very difficult situation of dealing with a nursing home in which very low standards had applied for a significant period of time, and she was trying to improve them, and so he refused her the injunction. He pointed out that seeking damages, rather than an injunction, was the normal response to alleged defamation.
Mr Justice Clarke then turned to the issue of trespass and the surreptitious filming. He accepted that this amounted to a breach of the privacy of the Ahernes. However, he said this in itself was not decisive. What had to be weighed in the balance was the importance of the public interest issues which arise and the extent to which damages may be an adequate remedy.
While not making any finding of fact on the contents of the programme, he said it raised "issues of very significant public importance indeed", justifying the programme being broadcast at the time scheduled.
Mr Justice Clarke listed these concerns, including whether the standards of care at Leas Cross fell below what could reasonably be expected and whether regulatory standards for nursing homes were adequate. This means that the conduct of private companies offering a service to the public, and the State regulation of bodies providing services to the public are both matters of such public importance as to justify the invasion of a right to privacy.
The judge made clear that such a breach would not be justified where the information was essentially of a private nature, and there was no public interest in its disclosure.
The judgment does not, therefore, give a carte blanche to broadcasters and publishers to trespass on a person's property, invade a person's privacy and carry out secret recording or filming. On the contrary, it makes it clear that unless justified by the public interest, such behaviour would be likely to be the subject of a prior restraint order.
Where the media suspects, however, that significant abuses are taking place and takes all necessary steps to investigate them, including trespass and subterfuge, the courts will look very favourably on the need for public exposure and public debate on such abuses before seeking to interfere in the freedom of the press.