The Irish Times, Kate Fitzgerald and the baying mob

A fact. It seems like the simplest, most unshakeable thing in the world. But so few people seem to understand what it means. A fact is something we know to have taken place.

Something that somebody says happened is an allegation. It stays an allegation until some evidence or testimony is produced that confirms it. That is how the law works. That is a fact.

In the flurry of internet postings about Kate Fitzgerald’s sad last days, facts are sadly lacking. That is largely because in Kate’s last article for the Irish Times, facts were lacking. She wrote it under a pseudonym, one assumes, for a reason. She didn’t want to embarrass her employer or her friends, perhaps. She certainly didn’t name any of them. However, she made at least one serious allegation, that her employers acted “illegally”.

As long as her employer remained unknown, that allegation was not an issue. Her employer was The Communications Clinic, as every dog in the street now knows.

The minute that information became known, Kate’s allegation became legally actionable. By the time it was published, she was dead. Without Kate to testify that her allegation was true, the Irish Times could not put it to The Communications Clinic and they could not  hope to eventually face their accuser. In Ireland, the dead have no legal reputation to protect. Until a court finds otherwise, The Communications Clinic is entitled to its good name. Like it or not, that is the law. That is a fact.

The anger at this reality is palpable, but it is not immediately clear from where it all comes. Some of it is intemperate and misguided — commentators on broadsheet.ie and the Irish Times Facebook page have confused Kate’s story with the case of Karagh Fox, a woman who claimed she was bullied by the Communications Clinic. The case settled out of court.

Others accuse Peter Murtagh of “outing” Kate as the anonymous author, when it was her parents who contacted him. Many demand that Kevin O’Sullivan, the editor of the Irish Times, reinstate allegations for which he can provide no evidence. Craziest of all, others still suggest that Terry Prone runs some sort of Illuminati-like PR agency that controls, unchallenged, the Irish political and media landscape. The mob suggests that the Times, having given into unproven pressure from the supposedly unaccountable Prone, can redeem itself by giving in to pressure from utterly unaccountable Facebook members.

We are into the territory of people believing in conspiracy over cock-up and, frankly, it’s not credible. Nor, unfortunately, is it easily combatible. The web has, yet again, made somewhat an ass of the law.

Be in no doubt, the Irish Times has botched the handling of this from start to finish. Reading between the lines of Hugh Linehan’s post today suggests they are well aware of it. But it is possible to do the right thing, legally, ethically and journalistically and still be painted as the bad guy in the minds of the public.

“Explaining is losing” is bullshit. Some reasonable commentators are finally emerging and as Hugh pointed out there are most certainly lessons to be learned. A refresher course in when to use pseudonymous sources and a seminar in jigsaw identification, for starters.  But no amount of mob rule, no matter how emotive the issue, should sway the editor to reinstate an article he is not convinced is factual.

Anyone who wants to continue the vitriolic campaign against the Times, I suggest they go read this post from Colette Browne. It may remind you of the more important message at the centre of all this.

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Purely in the interests of disclosure, I worked for the Irish Times a decade or so ago, and with Hugh Linehan specifically. He’d be the first to tell you he had no influence on my opinions

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  1. Sylvia

    I read the post from Colette Browne and all I saw was a journalist with her eye on a job in The Irish Times. Sorry. Much preferred this one: http://www.joyofwriting.net/blog/?p=730

    • finoreilly

      Thanks for the comment. I read the post you linked to and I think it illustrates my point perfectly. It is highly emotive but factually incorrect. Nobody called Kate Fitzgerald a liar. That hundreds of people misinterpreted the Irish Times’s poorly chosen words does not change that.
      As for Colette Browne, she calmly and reasonably suggests that the intentions Kate Fitzgerald had for her original article should not be overlooked in the rush to denigrate the Irish Times.
      Kate clearly wanted her original article to have an effect on people with depression and on their employers. I fail to see how the rage that is rapidly descending into conspiracy theory on the Irish Times Facebook page and broadsheet.ie honours that intention.

  2. Emotive, eh? Your blog post is full of emotive language: baying mob, pitchforks, vitriolic – more so than mine. Presumably if you agreed with the points made, you would rephrase that as “passion”, “determination” and “incisiveness”? Some conjugation here: *I* feel strongly, *you* are highly emotional, *he/she* is batsh** crazy…

    In your quick dismissal of my article as “highly emotive” (and, you heavily infer, wrong on that account before I’ve even started saying anything) you obviously missed the paragraph where I anticipate the ill-founded argument you make here:

    “And we have to be careful when we take on the powerful. They are already using two very clever tactics […] The first is the shooting down of our arguments by calling them “emotional”. They, on the other hand are rational, looking at it from the point of view of the law, in a professional way. We are unprofessional – they are the clean, sober Establishment which finds no need to howl abuse on the internet.”

    • finoreilly

      Thanks for the comment, Susan. My problem isn’t with the emotive language on its own – it is with the substitution of emotive language for facts. I didn’t mean to imply your article was wrong – I meant to say it outright. It is not a fact that Kate was bullied – again, I think there is some confusion with the case of Karagh Fox, who did allege bullying, but settled her case. What Kate alleged was “casual hostility” and “passive aggressive references” to “mental incapacity for her profession”. She alleged that her employer had acted illegally. She did not prove any of these allegations and, like it or not, allegations require proof for either courts to deal with them or newspapers to print them.
      I would add that merely anticipating someone’s line of argument does not make it wrong and nowhere did I use the word “pitchforks”.

  3. Ah, yes, the pitchforks. Indeed you made no mention of them, I must have added them in somewhere in the midst of all that moblike behaviour. Well we can’t be that much of a mob if we don’t have any pitchforks! (By the way, be wary of extracting the whole of my discourse from one error of omission.)

    Am aware that the cases involving Kate Fitzgerald and the other person named are discrete. However the language in which Kate Fitzgerald and Ms Fox described their confrontations with some staff members is rather discomfitingly similar. My “emotiveness” infers a duck from a collection of overwhelmingly ducklike attributes. You prefer not to go that road; we are not going to agree on this one, and there it is. I don’t have much further to go here.

    Maybe the Communications Clinic are NOT the Illuminati having a grip on public institutions in Ireland. Maybe we have all misjudged them. But in that case, why don’t they just come out and say so?

    • finoreilly

      I wouldn’t dream of it – that’s why I mentioned the pitchforks last.
      I don’t think we will agree, but that’s OK. I think there are definitely questions that remain to be answered and would like to hear from TCC and Peter Murtagh. But silence cannot and should not be taken as evidence of guilt.
      It is a very emotive issue and I think that’s why it calls for even cooler heads than normal. I see no good and lots of damage coming from people shouting at each other from the sidelines.

  4. How exactly has the web made an ass of the law?

    • finoreilly

      In that the redacting a story for legal reasons has seen it spread far more widely online. That wouldn’t have happened before the web.
      Call it “streisand effect’ if you like but libel law is not keeping pace with technology.

      • The story was not redacted for legal reasons, but on the advice of a lawyer. This is not just a hair-splitting distinction: The law itself has as yet said nothing the matter, because it has not been invoked by any of the parties. So far, only the Communications Clinic and the Times have been made asses of, though the Times in particular did most of the work themselves.

      • finoreilly

        There is no distinction there. Newspapers pull, edit or decline to publish articles on legal advice all the time. A court does not need to get involved to tell if an article is defamatory. Most decent journalists could tell you what’s libellous or not before a lawyer even touches it. If they then choose to edit or not print it, that still amounts to acting for a legal reason.

  5. Point there you have. And my biggest fear is that legitimate and strong misgivings could be written off by powerful opponents and ridiculed because some hotheads just constantly click the submit button and let off whatever steam is hissing out of their ears, referring to strangers by their first names and jumping to conclusions. It’s too easy. In order to truly engage, one must go to the arenas in which these people play and show them one is serious. And that’s what I am doing and will continue to do. All the best.

  6. Mairead Cryan

    There are 3 facts in this affair:

    1. Ms Fitzgerald’s anonymous article
    2. Peter Murtagh’s article following her death
    3. The Irish Times apology to TCC

    Most of other issues are subjective e.g. were Ms Fitzgerald’s comments derogarory?; was Broadsheet threatened?
    The Irish Times apology contained this statement:
    “that significant assertions within the original piece were not factual”

    To most ordinary people this statement accuses Ms Fitzgerald of lying. Her parents – who deserve far more consideration than TCC – have no doubt that the IT accused their daughter of lying. Factually what they said in their statement on Broadsheet is as follows

    “We asked for a retraction for calling Kate a liar and gave them two days to do so. Both editors stated that saying Kate’s words were “not factual” was not equivalent to calling her a liar.
    Like many readers, we fail to see that distinction. Two days later, we received a call from Kevin O’Sullivan, again apologizing for any offence caused, but declining to give us either a retraction or an apology, for ‘legal reason’.”

    I am afraid Fin your blog piece misses this fundamental point underlying the anger that various posters are expressing on different social media boards. It is analogous to all the community going to a funeral and saying to the bereaved ‘I’m very sorry for your troubles’.

    • finoreilly

      Thanks for the comment, Mairead

      Those are indeed three facts, none of which are in dispute. As I outlined in my post, I think the first two led unavoidably to the third.

      It is with the subjective that all the problems lie. “Not factual”, in my opinion, is not the same thing as a lie. Had I called you Cathy at the start of this reply, it would not have been factual, but few people would accuse me of being a liar.

      That the Fitzgeralds and many readers fail to see the distinction does not mean it does not exist.

      I don’t think your funeral analogy quite fits. There are certainly many, many people who are comiserating with the Fitzgeralds online. But there rapidly emerged a mass of people who were less interested in grieving a woman’s sad death or remembering her final message and merely wanted to vent or score points.

      • Mairead Cryan

        Whether there was a lie or not depends on the context. If I say to a group of people out walking ‘there’s a bull in the field’ what do I mean?

        Answer – it depends on the context. I could be giving a warning telling them not to enter the field. Then again I could simply be making an observation.

        A ‘lie’ by definition is a falsehood that is factually incorrect. When a child is asked by a parent ‘did you take the sweets?’ and answers ‘no’, even though she did, is she making a statement that is a lie or one that is not factual?

        I’m with the parents on this one, Fin. Sorry about that!

      • finoreilly

        Journalists may be a bit more precise with language than the average person. Lawyers, who undoubtedly would have been involved with the statement, are certainly more precise with language than journalists. And that can often create misconceptions.

        What matters with the word “liar” is intent more than context, I think. You can’t mistakenly lie to someone. And nowhere did the Irish Times suggest that Kate Fitzgerald intended to deceive anyone.

      • Mairead Cryan

        Section 5.1 of the 2005 Interpretation Act states “the provision shall be given a construction that reflects the plain intention of the Oireachtas or parliament concerned, as the case may be, where that intention can be ascertained from the Act as a whole”.

        What was the ‘plain intention’ of the phrase in the Times apology “that significant assertions within the original piece were not factual”. I put it to you that it was to cast Ms Fitzgerald as a liar. I bet if you ask anyone other than a lawyer and, possibly, some journalists what is that phrase used by the IT implying, they would respond that Ms Fitzgerald was accused by the IT, based on information supplied to it by a third party, of being a liar.

        The legal advisors involved in drafting the apology would have been fully aware that a dead person can not be defamed, hence the lack of concern about the wording used in attacking what Ms Fitzgerald said in her anonymous article.

        I think that this scene from the comedy series Taxi explains the obfuscation over the meaning of the wording in the apology far better than I can, and how the obfuscation is designed to move the public discourse away from the defamation of the deceased Ms Fitzgerald in the IT’s apology.

  7. Odonnellabu

    “Not only have they sullied the name of a dead woman, they have singularly failed to follow up the story and ask the questions people would like to see answered by Terry Prone and Kate’s ex-colleagues at the Communications Clinic about Kate and her demise.”

    http://ourmaninstockholm.wordpress.com/

    • finoreilly

      I disagree with the first part of that quote, as I’ve already explained. But I do agree that there are still many questions that need to be asked

  8. Yankeedoodle

    It is very hard to accept that I am part of a mob, but I guess even the most perfect snowflake becomes part of an avalance.

    However I dislike how those in know, those in teh right, those outside the mob, like to use the law as if it is black and white, as if there is no wiggle room. As if common sense must be left outside.

    I am a lawyer in the US and sadly do not have the time to delve back into my UCD days and Media law class, but I wadger that Kate’s article defamed nobody EXCEPT, potentially, her corporate employer (as it was the corporate entity that she accused of committing illegal acts). The only person that could have been identified by the piece was Kate’s manager, and I do not believe anything defamatory was said about them.

    As a corporate entity cannot, under Irish law, be defamed what was the issue? I agree that if Kate’s piece had been submitted under her name then the paper probably would not have ublished it, partly for fear of law suit, but partly for a second reason.

    Having decided to publish, I believe the decision to butcher, edit and ultimately redact was not due to fear of a lawsuit – I have discussed this with a few folks, including a well known SC, and all agree that having already printed the article there were enough defenses to call any bluff on being sued – but rather from the fear of upsetting powerful people. This is the second reason.

    Now while this may not be a fact, as you outline above, one should distinguish between paranoid delusions and logical conclusions. If a cat and a mouse are trapped in a box and you come back an hour later to find just the cat you may not “know” what happened, but you can use logic.

    Again, the logical is simple. The article was published, teh connection made. It did not contain anything defamatory to any individual, but it did suggest that TCC was not a great place to work. The Irish Times has access to some of the best lawyers in the country. I doubt anyone told them they would lose a lawsuit. But the Irish Times also has access to the inner workings of Ireland Inc. I doubt anyone told them that standing by the words of a trouble young woman was worth getting the TCC, and its clients, annoyed.

    I see you take the time to respond to people, and I think that is a great quality. I do not want to be part of a baying mob, but I also do not want to stand by and watch clear injustice. Especially when this story has all the buttons that make normal worker bees actually sit up and notice the strings being pulled. If you believe I am wrong, I would certainly welcome you telling me what part of the article was a legal timebomb. What part was going to cause the Irish Times to pay TCC or anyone else money for libel?

    • finoreilly

      Thanks for the comment — that’s a lot to take in.

      I’d like to emphasise I’m not a lawyer, but from what I can remember of media law classes, if you defame a small enough group, everyone in that group can claim damage to their reputation. The example I recall is “All greengrocers are crooks” is not actionable but “All greengrocers on Patrick St are crooks” may be. The company concerned here is small — its website lists 10 employees. It’s conceivable in that case that you wouldn’t just have to fight one case, but 10 of them.

      I’m also reasonably sure that a corporate entity can be defamed in Ireland — http://www.irishstatutebook.ie/2009/en/act/pub/0031/sec0012.html

      As for redacting the article for fear of upsetting powerful people, I don’t buy it. Firstly, there’s no evidence for it – if a company put pressure on a paper to pull something, I’d expect it to leak. Secondly, cock-up is always far more common than conspiracy. Finally, if you had used undue influence to have an article redacted and witnessed the storm that has erupted, would you consider it a logical course of action?

      ** Just a quick update – came across this piece – which goes a bit further in describing the possible legal difficulties behind this case

      • Yankeedoodle

        Ah, the danger in relying on law you studied 10 years ago. Sad to see Ireland has gone the way of America and decided that corporations are people too. It did not used to be like that. However this does make some comments that legal commentators made to me make more sense.

        Given the links you posted I think removing the comment that TCC committed an illegal act was needed. But I stand by the rest of my comment. Other than that line, everything else is just saying that, in the writer’s opinion, this was not a great place to work, due to the inherent issues most companies have with dealing with depression.

        I agree that cock up beats conspiracy everytime, but I think you believe I am saying this is a lizzard people type group controlling Irish media. Instead, I believe Ireland is still small enough that a simple phone call from the right person to the right person gets things changed.

  9. sdaedalus

    Fintan

    I agree that it would be difficult (though not necessarily impossible) to prove allegations of bullying if the person who made the allegations were not alive to testify.

    However there’s a big difference between describing allegations as not capable of proof and describing them as non-factual. “Non-factual” (the word used by the IT in its apology) means that the allegations are not based in fact, i.e. that they are untrue. This is in itself an allegation, and on your own analysis requires to be supported by evidence.

    However we have not been provided with any evidence by the IT to support its characterisation of Kate’s allegations as “non-factual”. The logical conclusion is that the IT does not have this evidence, or, if they do have it, do not want to disclose it either to the public or Kate’s parents for some reason which I, frankly, cannot understand.

    I’m not in the habit of wildly subscribing to conspiracy theories but quite a few things have come to light in this country over the past decade or so which were initially dismissed as conspiracy theories and if people act in an uncharacteristic, peculiar and evasive way (all fair characterisations of the IT’s behaviour in my opinion) others will start to ask questions.

    Yes it is possible to do the right thing, legally, ethically and journalistically and still be painted as the bad guy in the minds of the public but I haven’t seen any evidence that the IT has done the right thing here. Characterising Kate’s article as “non factual” went beyond what might have been required to avoid defamation and, in the absence of supporting evidence, doesn’t appear to be ethically justified either.

    You’re quite right that “explaining is losing” is bullshit – all people want from the IT is an explanation. I also agree that no amount of mob rule, no matter how emotive the issue, should sway the editor to reinstate an article he is not convinced is factual, but I also feel that if an editor characterises an article as non-factual (as opposed to not proven) there should itself be evidence to support this and the editor should communicate that evidence to their readers as an explanation for his characterisation.

    If there is no evidence , then what the IT has done has itself made an allegation against Kate – of publishing something non-factual – without evidence to support it. The very thing that you feel justifies editing her article would also apply to justify editing of the IT apology lol, to remove the non-factual part. Somehow I don’t think this is going to happen however.

    Most people commenting on this issue are not as unreasonable as you make out and – if the IT had stated from the outset that its decision was prompted by legal concerns, that it was not in a position to prove the allegations in the statement and apologised to all concerned for the mess that it had caused by allowing the employer to be identified – this might well have been the end of it.

    However as you know this was not how the IT handled the matter. The “non-factual” statement in the apology and the subsequent statement by Kevin O’Sullivan the following Monday to the effect that new information about Kate’s last months has come to light really requires explanation – at the very least, to Kate’s parents.

    It’s simply not good enough, on any analysis, for a newspaper to engage in that kind of behaviour and yes, it does raise questions and worries. If these worries are unfounded, there’s a very simple way for the newspaper to show this and silence the complaints – and it dovetails with your argument – let the Irish Times put forward evidence to support the allegations made by it about the non-factuality, and the new information.

    • finoreilly

      Thanks for the comment. Again, the allegations of bullying specifically are from another case, that of Karagh Fox, who settled the case out of court. As for proving a hypothetical case without a complainant being alive to testify, I think it would be near impossible. But it has happened – the Phoebe Prince case in the US, for example. I don’t know enough about the law to tell how much of that would apply in Ireland.

      I’ve already outlined why I think non-factual is clearly different from being a lie, so I won’t cover that again. I would say that you are mistaken in your assertion that the Irish Times needed to prove that Kate Fitzgerald’s comments were non-factual. The onus of proof in any potential defamation action coming from her employer would have been on the Irish Times to prove that her allegations were in fact true, not on her employer to prove that they weren’t. Which sends us back to trying to prove a case where the accuser is dead. This post goes into some more detail on some of the legal options that faced the Irish Times.

      On conspiracy theories, previous existence of conspiracies in Ireland doesn’t mean this is one.

      I don’t know if the people with the mob mentality I was referring to are in the majority or not – the comments on Tuesday and Wednesday were moving too fast to keep up. But I do know that in the generation and propagation of misinformation about the Irish Times and the Communications Clinic, they were stifling the debate about mental health and suicide that they claimed to be trying to protect.

      Finally, I am going to assume you read my earlier reply about getting someone’s name wrong being an example of a “factual error” rather than a lie. My name is Finbarr.

      • sdaedalus

        Finbarr

        My sincere regrets for getting your first name wrong.

        To avoid any misunderstanding, I’ve re-read your post and responses to comments carefully.

        As far as I can see, your position is that:-
        (i) the Irish Times’ conduct was necessitated by the threat of legal action
        (ii) non-factual’ as used in the apology simply means not susceptible of proof.

        There are two points which would seem to be relevant to your analysis and which I would ask you to consider:-

        Firstly, the fact that the Irish Times specifically stated, in the apology itself, that it was not made in response to legal representations. The first time the Irish Times mentioned legal concerns as a justification for acting was in Hugh Linehan’s recent piece. If the Irish Times was acting in response to legal concerns, why not come out and say this at the start, or at least not try to obscure this fact in the apology?

        It’s of course possible that the Times did act wholly (or partly) in response to legal concerns but for some reason did not want to admit this – why it did not want to do so, raises its own questions.

        Secondly, the ‘non-factual’ reference in the apology needs to be read in conjunction with Kevin O’Sullivan’s piece which appeared in the Times the following Monday, which specifically stated that the Irish Times’ decision to edit had been due to some further (unspecified) information about Kate’s final months becoming available.

        This clearly indicates that there is more to the ‘non-factual’ reference in the apology than just a form of words necessitated by the limitations of defamation law.

        The reference to ‘further information’ does not necessarily mean Kate lied – though this is one interpretation which might arise. However inevitably this sort of reference gives rise to speculation and at the very least – to avoid this – the further information should have been identified.

        This ties in with another point I wanted to make – whether or not the IT called Kate a liar is not really the issue – the question is whether or not it acted ethically in relation to her.

        Finally – of course the fact that there has been previous evidence of conspiracies in Ireland doesn’t mean this is one lol – I would have hoped that was abundantly clear from my comment. However I don’t think we should go to the opposite extreme of labelling every question asked as a ‘conspiracy theory’ either – there’s been, even on the most charitable explanation, a lot of obfuscation on the part of the Times on this, and people are entitled to ask reasonable questions without being mischaracterised.

      • finoreilly

        That’s OK – but on some level it shows you how easy errors of fact can be made.

        On the question of whether the apology was made in response to legal representations or not, I would suggest it is being ascribed far too much significance. As I’ve stated elsewhere in this thread, internal legal advice or merely a quick-witted reporter or sub-editor often results in a story being pulled or significantly altered. Future legal representations are also still a possibility. I would, however, like to know from the Times if any non-legal representation was made – just one of the questions it still faces.

        As for the “further information”, in short I don’t know what it is. My interpretation of this was that the combination of the first and second articles, via jigsaw identification, had made clear who Kate’s employer was. This further information made the apology necessary.

        I don’t label every question asked a conspiracy theory – I’ve asked a few myself. But the response to this story from certain quarters has been vicious and based on misinformation that is being recirculated and embellished at each turn.

        I don’t want to give the impression that I’m any sort of legal expert either – I’d love to read what a legal expert does make of this case. The link was just to offer some more possible interpretations of how the Times could have responded within the law.

      • sdaedalus

        PS: also, with the greatest of respect, the post you link to as an example of the legal options facing the Irish Times begins (very fairly) with the words ‘I am no legal expert’.

      • sdaedalus

        Well, I can certainly understand that the identification of the employer presented legal issues from point of view of defamation.

        If the IT had been open about this and said legal issues from the start – I don’t think all this fuss would have arisen.

        I retain concerns as to whether ‘non-factual’ was really appropriate (and it would be interesting to hear from an expert on defamation apologies about this) but it was an unusual situation and I agree that it could be difficult to formulate an apology in such a case.

        I don’t I’m afraid buy the ‘further information’ thing being jigsaw identification – if you read Kevin O’Sullivan’s piece he specifically says that the further information was about the last weeks of Kate’s life – any idiot can see the sort of speculation that this is going to give rise to – most unfair to her family to put something like this out there, unspecified, and leave it hanging.

        M post facto justification and that there may possibly have been other, non-legal factors involved. I don’t know one way or the other, but the statements put forward by the Irish Times are, to say the least, somewhat convoluted and you get a sense of the full story not being told.

  10. RobCH

    Your definition of what constitutes a “fact” deserves some challenging, let alone what “we know” means (first para), but that can wait. A newspaper in the business of conveying meaning to the general public should understand much better the interpretation of words. “Not factual” may, to a small audience of media people, scientists or lawyers, strictly mean “without sufficient evidence to prove it as a fact”. To the vast majority of ordinary people, it means “not true”, a fiction, and by implication an untruth, a lie, made up. The Irish Times has only itself to blame through its choice of words for the hurt it has caused.

    • finoreilly

      It might sound ridiculous, but a fact is a fact – it does not need “sufficient evidence to prove” it. If it is a fact, it has already been proven. What Kate Fitzgerald made were allegations and after her death, they were unsupported and unproven by her. Therefore, they were not factual. That is not the same thing as calling her a liar. In the absence of any evidence that a named company did anything illegal, the Irish Times could not leave the information presented the way it was. I’ve said in a previous reply that the paper chose its words to the Fitzgeralds poorly, but in a legal sense they are in a position where they can neither retract the statement that Kate’s article contained factual errors nor restore those articles to their original state.

      • RobCH

        Fin, re a fact is a fact, if you walk into a wall and hurt yourself when no-one is around to see it, that is still a fact. It happened – to you, in your reality. You know it absolutely, unless you doubt the reality of anything that happens without a witness. However, if someone then disputes your account, proof of your assertion is needed if it is to become a fact which they will also accept. Your “proof” could be showing your bruised nose, or fragments of plaster in your hair, or the dent in the wall. None of which is absolutely or legally conclusive, but informally will probably be enough to persuade others that you did what you say. And that is one of the issues with “facts” – they are what a sufficient number of people agree to believe are facts, not necessarily what has actually happened or is really, provably the case. For centuries it was accepted “fact” for millions that the earth went around the sun or that the Pope was infallible or that women were inferior/subservient to men. Generally accepted facts are social constructs; we would probably all go mad without them. But it makes the notion of what is a fact a grey area rather than comfortably black and white. Regards.

      • finoreilly

        I didn’t intend this post to become a philosophical argument on the nature of reality, but to point out that “assertions which were factually incorrect” does not mean lied.
        The three things you mention were never “facts”. They were beliefs, and they were mistaken. They are still held by many people today. That doesn’t make them any more factual than they were in the Dark Ages. Nor does it make the people who hold these factually incorrect beliefs liars.

  11. Well Said Fin

    This is the first reasoned piece of writing I’ve come across so far on this entire dismal affair. I too am a journalist, although I’ve never worked for the Irish Times. What I do know is that the potential payout for a defamation award should someone from the Communications Clinic decide to take action would likely run into the hundreds of thousands. That’s before the extortionate legal costs Irish barristers like to apply.

    I reckon every newspaper editor in Ireland would have acted the same way. While I am not a solicitor, I am also aware from having seen my employer’s lawyer kill innumerous stories that the American-based individual’s interpretation above is incorrect.

    Over a decade ago, a tabloid story was published accusing a couple of players from a GAA team of playing pool in the nude at their hotel after a match. The story was not denied by the team in question. Yet every single member of the squad threw in legal letters a few weeks apart, and because the tabloid didn’t know exactly which players were involved, they had to pay them all off.

    If the self-righteous social media commentators out there want a focus for their ire, they should look to both the Communications Clinic and the media organs who employ them. And perhaps our still ridiculous laws, which allow the truth to be shielded behind threats of legal action. The Irish Times may have to endure accusations of cowardice, but it’s better than having to potentially shut down the paper and/or lay off several staff because of a huge defamation award.

    • finoreilly

      Thanks for the comment. I would just point out that nobody has found that the Communications Clinic did anything illegal in this case. There is an awful lot of confusion regarding a bullying case taken against the company by another employee. That was not Kate Fitzgerald. As for reforming libel law, there are few journalists who would argue against reforming it. Their job, believe it or not given this comment thread, is exposing the truth.

  12. Cornell

    http://www.broadsheet.ie/2011/12/22/to-journalists/#comment-99807

    “The ‘baying mob’ is yet another journalistic cliche.”

  13. Mairead Cryan

    Law lecturer Ruth Cannon http://www.dit.ie/socialscienceslaw/law/staff/ruthcannon/ posted a legal opinion of sorts in response to Hugh Linehan’s blog. It is well worth reading. It was highlighted by a poster on Boards.ie

    http://www.boards.ie/vbulletin/showthread.php?t=2056467297&page=31

  14. It might be a bit late to comment on this now but, as an outsider reading this from an interest in combating workplace bullying, the saddest aspect for me was that Miss Fitzgerald’s message has been lost behind the legal posturing. I’ve written a blog about it, and if anyone’s interested, you can find it here: http://wp.me/p262ZD-1c




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