The problem is not Denis O’Brien or the Daily Mail. The problem here is the right of Irish people to their “good name”, even as they live in notoriety.
The circumstances surrounding the ESAT deal have made Lowry, O’Brien and naturally the tribunal system itself all notorious as they years have gone by. The entire spectacle has become a classic example of sloth, expense, greed and farce since its inception. Most people in Ireland will know Denis O’Brien primarily as “yer man from the tribunal”.
While it is overwhelmingly likely that no laws were broken over the course of the ESAT deal (there are effectively no laws governing such processes), the idea that the process was pure as the driven snow does not hold water with a general public, weary from constant scandal and the lack of consequence for it. People in Ireland disapprove of the type of payments and behaviour on display during the ESAT deal and notoriety and loss of good name for those involved is to be expected — in my opinion it should be welcomed.
Unfortunately, the Irish courts seem to have consistently disagreed with such logic.
I am not clear on what basis the law defines someone’s “good name” or how it should be vindicated. Is it a general property of a person’s reputation, or does it depend on specific matters in which they have engaged? Is Denis O’Brien’s good name tarnished by his facilitating of payments to Micheal Lowry, or does this tarnishing only apply in this context? Has his good name been tarnished at all? Can a good name be tarnished?
If Denis O’Brien and others have a right to have all record of past misdemeanors removed from accounts of his present day activities, then Tribunals truly serve no purpose at all in this country. Their findings of fact are entirely academic if no-one can report them because it would damage someones “good name”, or if there is some kind of “expiry date” on the findings after which they may not be mentioned for the same reason.
There are two clear response to this decision:
1) Firstly, no more tribunals, for any reason.
2) Remove the right to a good name from the Irish constitution, or else heavily qualify it. This right should not trump the freedom of others to publicly disapprove of you.
OMF 22 Feb 2013