THE STANDARD “free speech and democracy” argument involves a convoluted reasoning about the dissemination of information in society demanding there be a right to publish things that are wrong. But if, as a result, we end up promulgating untruth, what is the point? How will the people know whether anything is true? Does the routine valorisation of freedom of speech not then become merely the self-serving justification of an industry which has observed that, sometimes, the untrue is more marketable than the true?
Last Friday, several Irish newspapers carried brief reports of a court case in which the siblings of a deceased man sought leave to bring a prosecution against Independent Star Ltd, trading as the Irish Daily Star, for criminal libel on foot of reports that their brother's murder two years ago had been due to "a bizarre sex game that went wrong".
The Irish Times report stated: “Mr Justice Paul Gilligan said the person who was the subject matter of the material complained about must be alive. He also found that the Dennehy family had not made a case that they were defamed by the articles.”
It is strange and troubling to see, at what may be the end of the appalling business relating to the loss of a life, the extent to which the facts as related differ from what occurred. If society is so interested in truth, it must find ways of doing better than this.
Finbar Dennehy’s family had for years been aware he was gay, but he waited until he was 47 and had taken redundancy from his job in Cadbury’s before he “came out” to his friends. Three years later, in September 2007, his dead body was found, fully clothed and bound, in his apartment.
It emerged that he had known his murderer, having met him some time previously in the George public house in George’s Street, Dublin. He subsequently allowed him to stay overnight in his apartment because the man claimed he had no place to stay. Finbar slept on the couch while the man who would later kill him slept in his bedroom.
On September 27th, 2007, the day after Finbar Dennehy's body was discovered, the Evening Heraldran a front-page banner headline: "Man chokes in sex game killing". The following day, the Irish Daily Starran a front page story headed, "Kinky sex horror". Inside, it was stated that Mr Dennehy's body had been "trussed up like a pig in a bizarre sex game".
On September 29th, the Irish Timesreported that a Garda spokesman had described as "totally inaccurate and appalling" certain media speculation about the death. The same day, the Irish Independentreported on the case under the headline: "Killer thief 'may have staged fatal sex game'."
Even after Michael Downes was charged with murder on October 1st, several newspapers were reluctant to let go of their “story”: The Daily Mirror’s headline stated: “Man, 41, quizzed over kinky sex act murder”. The text of the article stated, however: “One line of inquiry is that Mr Dennehy brought someone home to his apartment who then stabbed him and tried to make the death look like an accident.”
The Evening Heraldhad it both ways, claiming that gardaí had initially suspected that Finbar had "died during a sex game which went wrong and in which his partner failed to report his death", but then adding that the victim was "also" stabbed "during the auto erotic encounter in his apartment".
There was no evidence of sexual activity between Downes and his victim, who had died from a stab wound. Because Downes pleaded guilty, it did not emerge during his trial that he had taken €5,700 from Dennehy’s bank accounts after the murder and that he had several previous convictions for similar offences.
Some small sense of the truth emerged in a number of reports, including one headed "Suspect used stab victim's credit card", in the Irish Independenton October 1st. But several newspapers continued to publish formulations that perpetuated the "sex game" version while sotto voce conceding its untruth. "Gay murder quiz" said the Sun's headline on Downes's arrest, and underneath: " 'Sex game' a smokescreeen." On October 2nd, the Starcarried its first headline on the story that did not mention sex: "Man charged over fatal knife attack."
The attempt to prosecute for criminal libel arose after Finbar Dennehy's siblings failed to obtain an apology from the Irish Daily Star. Under existing defamation legislation, it is not possible to libel the dead, although a number of newspapers did publish apologies. Obtaining permission for a criminal prosecution places a high burden of proof on applicants to show that not merely have they, the surviving relatives of a deceased individual, been brought into hatred, ridicule or contempt, but that the matter is of such grave public interest as to justify a prosecution.
The Irish Daily Stardid not contest the facts, confining its defence to legal submissions. Judge Gilligan found that the family's case did not meet the required burden, but in his judgment observed that the views of the Star's reportage expressed by the applicants "state all that is appropriate in relation to the articles themselves".