Denis O’Brien, Ireland’s most powerful media owner, is – as an individual – exercising an extraordinarily chilling effect on journalism and journalists after grossly negative findings against him in the Moriarty Tribunal By Michael Smith
When Village asked Sam Smyth to contribute a piece about a media topic of his choice for this edition, he replied “I’m still under legal siege from you-know-who and cannot venture into print yet”. Smyth was the lead Irish Independent reporter on the Moriarty Tribunal, which reached negative conclusions about Denis O’Brien. O’Brien is suing Smyth for alleged defamation on TV and radio, and in print.
Frank Connolly, one of Ireland’s most experienced journalists, conducted a wide-ranging interview with Éamon Dunphy for Village. In the end Dunphy’s lawyers advised that because O’Brien is suing him, he should ask to have the interview withdrawn.
As these old pros batten down and page after page remained virgin white I realised Village was going to have to take a look at Denis O’Brien – if only to fill the now gaping blankness.
Journalist and broadcaster Vincent Browne recently resigned from the Sunday Business Post where he was a columnist, in part because the newspaper refused to print a piece he had written about Denis O’Brien’s pervasive media influence. A former editor, Ted Harding, left the same paper as long ago as 2004, some time after he was forbidden to print material about O’Brien that his bosses were unhappy with.
In June last year O’Brien wrote to Vincent Browne, who was close to him when he was personal assistant to Tony Ryan – the businessman who helped Browne revive the Sunday Tribune in 1983. He finished up: “I am putting you on good notice that if you continue to libel [sic] me that I will be left with no other avenue but to sue you personally”. Browne replied that the threat was an abuse of money and power.
After academic Elaine Byrne wrote an article in the Sunday Independent, “So Who’s Afraid of Denis O’Brien? Enda Kenny”, she received a letter from lawyers for Denis O’Brien: “the article is characterised by an appalling lack of objectivity. This is demonstrated in Ms Byrne’s repeated references to the Moriarty Tribunal report in support of criticisms of our client…[and her] sneering and sarcastic description of him as a patriot …It is also obvious from … an avalanche of commentary via her Twitter account that Ms Byrne has a personal animus against our client and is clearly pursuing an agenda…. Her snide and uninformed comments in relation to our client’s tax affairs are further evidence of this…We hereby call upon you to publish, in a prominent position, a full retraction, an apology in the next edition of the Sunday Independent. And let us have your proposals to address this grave wrong in terms to be agreed with this office”.
Byrne says “There was no apology and there was no retraction”. The case proceeds. O’Brien has two years to move it.
Meanwhile Byrne, a young if precocious heroine of free speech, has migrated to Australia as a consequence. She told Village, “the Sword of Damocles has a marginalising effect on your career”.
O’Brien has also threatened to sue corruption watchdog, Transparency International, for linking Ireland’s descent down its international corruption index not just to the Mahon and Moriarty Tribunals in general, but to Denis O’Brien in particular. The group is apparently not yielding.
Anne Harris, editor of the Sunday Independent, has claimed that 17 journalists have received legal letters from Denis O’Brien in the last ten years.
Last week cash-rich O’Brien obtained an injunction stopping the Sunday Times publishing confidential details of his business relationship with cash-short Paddy McKillen.
O’Brien also has two challenges before the Supreme Court relating to Moriarty’s decision to deploy former Attorney General, Michael McDowell, to cross-examine key pro-Lowry witness, Professor Michael Andersen, and to curtail his evidence.
He even wrote to Village about a profile of him last year, though his letter was painfully thin and he didn’t bother to make legal threats.
And O’Brien is suing his cousin Donald MacAllister, most notable until now for self-publishing an incendiary book making allegations about the death of his mother in a car crash in 1972. O’Brien objects to allegations he has made about the Moriarty Tribunal and associated litigation, in emails he sent to Micheál Martin, Vincent Browne and Aung San Suu Kyi, among others.
Less chilling, because it didn’t really centre on denying the proceedings of a Tribunal, was O’Brien’s recent successful defamation case against the Irish Daily Mail which was grounded in his concern at the misrepresentation of charitable works associated with his involvement in a Carribean mobile-phone company, Digicel. After a week-long trial, the jury found for O’Brien and awarded him damages of €150,000. Experienced Mail columnist, Paul Drury, had written that O’Brien “kept popping up” on RTÉ news to promote his image “set to be tarnished by a pending report of the Moriarty tribunal”. It was, Drury wrote, an “ingenious feint”. Unfortunately for the Mail, this view of the facts did not hold up. In addition, while the article said Moriarty was “about to report”, O’Brien stressed that anyone familiar with the tribunal could have told Drury that publication was not imminent.
The new ‘honest opinion’ defence advanced is defined in the Defamation Act, 2009. The guts of the defence is that published opinion may be defended in a libel suit if it was anchored in fact, concerned a matter of public interest and was honestly held by the publisher or author. But in this case it was not so anchored. That Denis O’ Brien was genuinely concerned for Haiti and not self-promoting may not suit liberals or begrudgers but it seems to have been the facts, and it explains the finding.
The National Union of Journalists has been strangely silent on all this, though it raised some concerns about the recently-proposed 39-point discussion document on an INM editorial charter which would leave journalists ‘on their own’ in a defamation case if the journalist had written “any sustained or repeated adversarial material”.
National broadcaster, RTÉ, too seems unconcerned by, indeed oblivious to, any possible chills. A recent article in the Sunday Times by senior writer, Justine McCarthy, queried why RTÉ has largely ignored the recent Lowry Tapes, in which Lowry admits to having paid €250,000 additional to what he told the Moriarty Tribunal, to land agent Kevin Phelan, leaving it to the privately-owned TV3 to broadcast them. Elaine Byrne who originally broke the Tapes story reckons RTÉ in total devoted only “20 minutes, incidental” coverage to the tapes before she gave them to the Vincent Browne show.
McCarthy also expressed concern at Prime Time’s failure to consider O’Brien’s victory in the Mail defamation trial, and registered some concern – given his position in the media – at his dismissal during the trial, of the relevance of the Press Council which is intended to mediate defamation disputes. Further, she noted that RTÉ has been broadcasting documentaries, such as Lifers,which have been funded by O’Brien.
In reply David Nally, Managing Editor, RTÉ Current Affairs, has contended that the Lowry Tape “got the coverage it deserved” and “does not advance the story significantly beyond the findings of the Moriarty Tribunal”, even though the tape seems to show that Lowry perjured himself and raises questions as to where his company got the covered-up €250,000 to pay Kevin Phelan – issues which are now being investigated by Gardaí.
If his promiscuity with Solicitors’ Letters suggests a little edginess, some insight into O’Brien’s wider thinking on the media is to be gleaned by correspondence last year to Vincent Browne, where he suggested: “Perhaps you might like to consider that since the media finds it increasingly difficult to make a profit, it requires owners who can make money elsewhere to effectively subsidise important journalistic activities. Once they do so at an appropriate distance from editorial matters there shouldn’t be a problem”. He continued: “I am keenly aware of the influence that has been brought to bear in certain elements of the Irish media, having borne the brunt of agenda setting over the past 10 years. That experience has reinforced my understanding of the responsibility that rests with media owners not to interfere with editorial content”. So far, so encouraging.
O’Brien made two payments to Lowry, in 1996 and 1999, totalling approximately £500,000, and supported a loan of Stg£420,000 given to Lowry in 1999.Moriarty found that the payments from O’Brien were “demonstrably referable to the acts and conduct of Mr Lowry”, acts which benefited Esat Digifone
Yet leaked ‘file notes’ by former INM CEO, Gavin O’Reilly, cited by website broadsheet.ie, imply Denis O’Brien tried to interfere directly with editorial policy in the Irish Independent. In October 2010, an O’Brien appointee on the INM board, Leslie Buckley, contacted Gavin O’Reilly in what he said should not be taken as a “threat”, following a conversation Leslie Buckley had had with Denis O’Brien. The boss, according to Leslie Buckley, was “very upset with Sam Smyth”. He alleged Smyth was conducting “almost a vendetta” against him. He wanted to know whether Sam Smyth could be taken off the story of the Moriarty tribunal which was “winding down”, and “moved on”.
In November 2010, Gavin O’Reilly had a transcript done of a phone message left by Leslie Buckley: “Hi Gavin, Leslie here. Got your text message. Really what we are talking about is there somebody who can be down there, I know there are other reporters, really kind of writing pretty positive situations. There was one good story last week carried – I can’t remember who, but by and large, it’s generally negative stuff. Someone with our friend down there I think really trying to ensure that a good balanced story comes out. That would be much appreciated. Give me a bell as I’d like to try to resolve this”. Interference? Naked.
The relationship between Smyth and O’Brien ended in tears with O’Brien threatening to sue over comments both broadcast and printed.
Vincent Browne claimed that veteran Smyth had been ostracised at the INM group before his last report for the Irish Independent at the end of May 2012.
Sam Smyth is not the only INM employee whose engagement has terminated.
In August 2012, the Sunday Independent, newly defiant under editor Anne Harris, interviewed former INM chairman, James Osborne, who claimed he was “definitely stabbed in the back” by O’Brien who sought to suppress an article which was eventually published in April 2012. The article listed Anglo Irish Bank’s largest borrowers as at March 2009, and included O’Brien who was “listed as owing Anglo Irish Bank €833.8m on foot of personal and corporate loans just after the bank was nationalised in 2009” but “has over the past three years reduced his borrowings to under €500m using cash generated by his Caribbean and Pacific-based mobile phone empire”. The article was innocuous.
Osborne claims that at one o’clock one Saturday “I got a call from Denis. He said ‘they’ve been on to me, there’s an article in tomorrow’s paper and I want it withdrawn’ – and I said ‘I’m sorry, not me. I’m an independent non-executive chairman and I’m not doing that’”. Not long afterwards Osborne was voted off the board with O’Brien votes.
As regards radio, O’Brien’s stance seems essentially indistinguishable. Certainly he is at the least an engaged and opinionated boss and is on record, for example, as encouraging Newstalk to be more ‘positive’.
Sam Smyth says that “Today FM’s CEO told me that Mr O’Brien’s people had been angry when the Moriarty tribunal was raised as a topic on the Sam Smyth on Sunday programme”.
Éamon Dunphy, who has compared O’Brien “bitter…small-minded” unfavourably with former INM CEO, Tony O’Reilly, saying he preferred the “old-style mogul” who was generally hands-off, and berating O’Brien whose “people let me know when he wasn’t happy with, say, Robert Fisk, Eamonn McCann, or the various contributors to our business slot”. Several Newstalk people, including its former CEO Elaine Geraghty who bluntly said “this is most serious because it is wrong”, have persuasively denied this. More recently Dunphy, clearly not a loyalist, described Newstalk as an underpaying “slum” and declared that O’Brien “hated journalism”. Later he resigned.
It is not clear if the non-renewal of Sam Smyth’s contract with Today FM had anything to do with O’Brien’s attitude to his journalism. In his letter to Village, O’Brien wrote that “the reasons were entirely operational ones and related to falling listenership figures. The decision to terminate Sam Smyth’s relationship with Today FM was taken by Today FM management. I was not involved”.
Looking at INM and Newstalk/Today FM together, Browne’s article, one of the ones that got printed, concluded:” I do not believe Denis O’Brien is a fit person to be allowed control the country’s second most powerful media enterprise”.
Who is this man to who so much power is ascribed?
Denis O’Brien’s potted tale is well known: he was born into comfortable circumstances in Rathgar, Dublin 6, went to the High School, UCD and Boston College, learnt to love business through his Catholic father and human rights through his Protestant mother, went on to work as PA to hard-flying Tony Ryan, is sporty, loves cars and rugger, values loyalty above all, is hyper-sensitive, throws strops and loves to be seen as an ordinary bloke.
Both physically and personally, he has a strangely bullish neck. Siobhán Creaton’s biography, ‘A Mobile Fortune’, opens with the tale of O’Brien getting off his private jet at the end of a trip to some Pacific island after he hears he has just been ripped off for the taxi fare to the airport. He assails the taxi-driving malfeasant for $50 while his Gulfstream burns kerosene on the tarmac. “Don’t ever let anyone rip you off”, he tells his open-mouthed colleague.
Anne Harris, editor of the Sunday Independent, has claimed that 17 journalists have received legal letters from Denis O’Brien in the last ten years
Journalist Éamon Delaney tells the illustrative tale of when O’Brien was named Business Person of the Year and Peter Sutherland was given a Life Time Achievement award at the ethics-stretching Business and Finance awards in 2007. “Both men were genuinely grateful for the honours and gave long speeches which were utterly compelling, insightful and assured. But whereas Sutherland was reflective and philosophical – the first Lisbon Treaty vote was in the balance – the ebullient O’Brien had an edgy humour. He opened by welcoming us to the venue, O’Reilly Hall in UCD ‘and can’t you feel the chill factor already’. Cue a round of nervous laughter from the assembled audience”. The chill, nervousness and edge all seem to have burgeoned since 2007. As has his bank balance.
The Sunday Times placed him second in Ireland’s ‘Rich List’ in 2012 with assets of Stg£2.16bn and the Sunday Independent made him the richest Irish-born person with a “net worth” of €3.8bn, in 2013.
O’Brien founded the Esat Telecom Group plc to bid for Ireland’s second mobile-phone licenceand built it throughout the 1990s until its sale to British Telecom plc for €2.4 billion when he received €367m gross including investment. He became a Portuguese resident and avoided £55m in taxes otherwise due in Ireland. He claims the move was for “perfectly legitimate personal and business reasons”. Though he has sometimes claimed the move was not to avoid Irish capital gains taxes, he has inconveniently on occasion apparently conceded that it was.
Denis O’Brien founded Digicel in 2001 when the company launched a GSM cellular phone service in the Caribbean. Digicel has extended its operations to 32 markets with over 11 million subscribers in the Caribbean, Central America and Pacific regions. Digicel’s operating profit was up by 13 per cent to US$1.08 billion, supported by its growth in subscribers, in the year to March 2012. In 2011 O’Brien took a $95m lump sum out of the company through a dividend. In Jamaica, the Fair Trading Commission is taking legal action to reverse Digicel’s takeover of the third biggest mobile company there, Claro, which gives O’Brien’s company a more than 80% share of its biggest market.
In 2010, O’Brien netted $693 million from the sale of his Digicel Pacific Limited (DPL) business to the Digicel group.
Denis O’Brien is the founder of Aergo Capital Limited which owns and operates a fleet of 103 commercial aircraft. The company is valued at $250 million and is a shareholder in AIM-listed Sterling Energy which has a broad range of exploration interests, mostly in West Africa.
He is currently bidding for one of the four mobile-phone licences in Myanmar.
In 2005, O’Brien became Deputy Governor of the revered Bank of Ireland, though he resigned a year later. And he moved his residence from Portugal to Malta, for tax avoidance reasons. His abode there, as he declared to the High Court recently, is primarily an office block.
O’Brien is certainly one of Ireland’s leading entrepreneurs with investments in international telecoms, radio, media, property, aircraft leasing, golf and other leisure interests. He also founded Communicorp Group, which he owns outright, to manage a portfolio of media and broadcasting-related companies in eight European countries and Ireland. These include 98FM, Today FM, Highland Radio, Spin 103.8, Spin South West and Newstalk.
In the last two years, Newstalk has lost Éamon Dunphy to indignation (and a mooted pay reduction), Ivan Yates (to UK bankruptcy) as well as the Off the Ball sports team whom O’Brien pushed after they bid for a primer slot.
O’Brien also of course has a €600m stake (29.9%) in lifeboat-dependent Independent News and Media (INM) which owns the newly-rebranded Herald, Irish Independent, Sunday Independent, Sunday World, co-owns the Irish Daily Star; and owns 14 regional titles, two free newspapers, and a magazine.
Though this may pose Competition issues (see Roderic Flynn article on page 32), as evidenced by continuing hostility in the Sunday Independent, he does not have full control.
O’Brien is a member of the Bilderberg group. He part-funds the extravagant wages of Irish soccer manager, Giovanni Trapattoni. He is Chairman of the of the National College of Ireland which he serves unpaid.
In 2010, he was named Goodwill Ambassador for the city of Port-au-Prince in recognition of his efforts to rebuild Haiti and attract foreign direct investment after the calamitous earthquake. The Guardian ran a piece headlined, ‘How an Irish telecoms tycoon became earthquake-devastated Haiti’s only hope of salvation’, which detailed how Port au Prince’s iconic Iron Market will shortly reopen “all down to Denis O’Brien”.
He is the Chairman and Co-Founder of Frontline, the International Foundation for the Protection of Human Rights Defenders which “works to ensure that the standards set out in the UN Declaration on Human Rights Defenders, adopted in 1998, are known, respected and adhered to worldwide”.
In 2000, Denis O’Brien established The Iris O’Brien Foundation, named after his mother, to identify and assist projects in Ireland and internationally which aim to alleviate disadvantaged communities. The foundation has broad aims, including promoting human rights, helping people affected by disasters, helping people with a mental or physical handicap, advancing education and supporting the arts. The foundation has spent nearly €20 million on charitable works. O’Brien has links with Unicef and Camara, which sends computers to developing countries. He has also funded multicultural awards and awards run by Social Entrepreneurs Ireland. He serves on the US Board of Concern Worldwide.
He once donated £250,000 he had been awarded in libel damages to Amnesty International, for which in 2009 he hosted a lunch at which Seán FitzPatrick, disgraced former CEO of Anglo Irish Bank, was guest of honour. He was Chairman of the 2003 Special Olympics World Summer Games when the games were held in Ireland. He has an honorary doctorate from UCD and is a mate of former US President, Bill Clinton. If you mention your charitable cause to Denis O’Brien he is likely to give you his personal phone number.
In short he is a dynamic and successful businessman and a hero to charities. Presumably on the back of this, he was a high-profile guest at events for Queen Elizabeth II, with whom he was oft-photographed and at the two over-inflated Irish Global Economic Forum conferences, and embarrassed Enda Kenny by showing up at the opening of the New York Exchange to be photographed smiling and clapping like an eejit.
Of course, most of the fractiousness that characterises this tale originates in the proceedings and conclusions of the Moriarty Tribunal. Just over two years ago, it found that former minister for communications, Michael Lowry, “secured the winning” of the 1995 mobile phone licence competition for Denis O’Brien’s Esat Digifone. The tribunal, which O’Brien informed Village was, despite being presided over by a judge, not ‘judicial’; also found that O’Brien made two payments to Lowry, in 1996 and 1999, totalling approximately £500,000, and supported a loan of Stg£420,000 given to Lowry in 1999. In his 2,348-page report, Judge Michael Moriarty found that the payments from O’Brien were “demonstrably referable to the acts and conduct of Mr Lowry” during the licence process, acts which benefited Esat Digifone. In effect O’Brien was trading in influence or ‘legal corruption’. O’Brien informed Village that “I take very serious objection to the use of the word ‘corruption’ in the context of my involvement in the licence process. This Moriarty Tribunal (very deliberately) made no reference whatsoever of corruption in any aspect relating to me when it came to publishing its report”. Nevertheless it is not clear that the payments to Lowry were not indeed susceptible to a finding that they were towards the corruption end of the impropriety continuum.
Looking back, O’Brien has, controversially, said Judge Moriarty was “not up to it”, and that the courts have erected a “ring of steel” insulating the Moriarty Tribunal from legal accountability, earning castigation as “contemptible” from High Court judge, Colm MacEochaidh.
He disputed and continues to dispute the tribunal findings, believed the report had ignored the evidence of a key witness, indeed that no witness gave evidence that Lowry interfered with the licence process, got certain things completely wrong and was in the end based on the opinion of Judge Michael Moriarty, not on the basis of what would be required in a court. He emphases that the conclusions were not ‘findings’ and are legally sterile – which – surprisingly to most – indeed they are.
In the course of the Daily Mail action, he told the High Court it was not true the final report of the Moriarty Tribunal was devastating for him, evoking a question as to how he would behave if he indeed considered it devastating.
An earlier Village profile of Denis O’Brien concluded that “the point about Denis O’Brien is that, if you believe that not paying taxes and paying money to Ministers to get favourable decisions on multi-billion-Euro deals, is unethical, then much of his money is not morally his. It is too easy to garner plaudits for philanthropy on the back of donations of cash, some of which is not ethically yours to give”.
When vicious litigiousness is combined with dubious business ethics, the case for Denis O’Brien, even if he is often – or mostly – a paragon, has become invidious to make.
In his interview with Anne Harris, shafted INM Chairman, Osborne, said “I don’t think people’s views will change dramatically, so – suing all these journalists – do you suddenly think that is going to make them write different kinds of articles? They might just be a bit nervous about what they write”. The evidence unfortunately is that many of them are not writing at all.
O’Brien needs to be careful lest this craven media silence becomes his primary legacy to discourse in this beleaguered Ireland.