Teacher Enoch Burke has lost his defamation action against the publishers of the Sunday Independent, after the a High Court judge ruled that while the article contained seven paragraphs about him which were untrue, the article did not and could not have injured his reputation.
Mr Burke, who remains in jail over breach of an injunction taken out in a row over transgenderism, took the action against Mediahuis Ireland, publishers of the Sunday Independent, after an article published on 9 October 2022 wrongly stated he had to be moved from his jail cell because he was annoying prisoners and repeatedly expressing his religious beliefs, and also claimed he was in danger of being beaten while in prison
Mr Justice Rory Mulcahy said the seven paragraphs in the article written by reporter Ali Bracken complained about by the plaintiff are untrue – which he said was “unfortunate” – “but the tort of defamation and the Defamation Act of 2009 do not provide a remedy for simply untrue statements made about a person.”
To obtain a remedy, a plaintiff must establish that the untrue statement tended to injure their reputation, the judge ruled.
“I have concluded that the words used in the Article, in their ordinary and natural meaning, were incapable of injuring the plaintiff’s reputation. Even if they had been capable of injuring his reputation, having regard to the plaintiff’s actual reputation at the time that the Article was published, the Article did not and could not
have injured his reputation,” he said.
The article was published during Mr Burke’s first stay in prison for breaching a court order ordering him not attend Wilson’s Hospital School, where he was a teacher. The school had suspended him after a public disagreement where he said he would refuse to obey an instruction to refer to a male student by using they/them pronouns.
Judge Mulcahy said that: “it couldn’t have been doubted that Mr Burke had strongly held religious beliefs and was so determined in his expression and exercise of them that it had led to his suspension from school and the school considering it necessary to obtain a High Court injunction.”
He added “it is difficult to credit Mr Burke’s complaint that an article wrongly claiming that he had repeatedly expressed religious views to his fellow prisoners would have had any bearing on his reputation at all. The evidence at the trial, for instance regarding his attendance at the Mayo Pride March in 2018 or outside the Oireachtas in 2011, clearly established that Mr Burke was prepared to take steps to give public expression to his religious views.”
He ruled that “it must be the case that any person’s reputation is diminished in the eyes of a reasonable member of society if they simply refuse to comply with a court order” – adding that a reasonable reader of the article in the Sunday Independent could not have had a view of Mr Burke’s reputation that was capable of being injured by an incorrect allegation that he had been speaking excessively about religion following his imprisonment.
“The suggestion that he severely annoyed his fellow prisoners by the repeated expression of his religious beliefs is, in those circumstances, a whisper in the hurricane of noise which his actions in September 2022 created,” he wrote.
The judge said that “the most significant fact, well known to any reasonable member of society at the time of the Article and which, again, is not disputed by Mr Burke. This is that he did not comply with the High Court order to stay away from the School, had been imprisoned for contempt and had not purged his contempt. This wholly undermines any suggestion by Mr Burke that his reputation has been damaged by the Article.”
“It must be the case that any person’s reputation is diminished in the eyes of a reasonable member of society if they simply refuse to comply with a Court order. In a democratic state, operating in accordance with the rule of law, it is simply not open to anyone to decide with which orders of the court they will comply. If a person is the subject of a court order and considers that it was wrongly made, on any ground, then the remedy is to appeal that order, not to simply ignore it.”
The newspaper had published an apology on January 1st, 2023, and clarified that Mr Burke’s cell change was for “operational reasons only and not for the reasons stated in the article”. It strongly denied defamation and pleaded fair and reasonable publication on a matter of public interest.
The judge also awarded costs against Mr Burke.