The big chill: the silencing effect of Sinn Féin legal threats against politicians

Few politicians would pass a chance to speak publicly on matters of major public interest, but on legal complaints from Sinn Féin members about alleged defamation claims, all clam up.

This is what political opponents of Sinn Féin call the “chilling effect” of the threats and subsequent court cases (where the threats are followed through); to suppress criticism of what they see as the legitimate rough and tumble of political debate in a constitutional democracy.

“When have you found a TD or Senator not wanting to comment in a newspaper? Is that not the very point of the effect of this? This should set off alarm bells through the system,” said one.

Taoiseach Micheál Martin claimed last weekend that Sinn Féin was attempting to shut down public debate by taking defamation cases against media outlets and politicians.

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“There is something deeply wrong with a party which has built its entire existence on honouring a campaign of violence but now attacks and sues anyone who claims that they supported particular actions within that campaign,” he said.

Beyond concerns raised around RTÉ pulling a recent radio interview with former government minister Shane Ross about his book on Sinn Féin leader Mary Lou McDonald, Mr Martin said: “Political opponents are now regularly receiving legal threats for statements which no one previously thought could even be controversial.”

Tánaiste Leo Varadkar went further the following day, saying that he knew of at least three elected Fine Gael representatives who have received legal letters from Sinn Féin threatening cases. He suggested the use of legal threats by party members “seems almost strategic” and questioned whether the party was encouraging its members to sue and underwriting the financial cost.

“If that is the case, then that’s something quite new. That is the strategic use of legal action to try to stifle debate and that’s worrying I think,” he said.

Sinn Féin responded that it did not fund these legal cases and that they are paid for by “those who have no option but to vindicate their good names in the face of false accusations made by others”.

Leaving aside the merits of individual complaints, their effect is to discourage politicians in other parties from challenging or criticising Sinn Féin on social and traditional media.

One example of how a previous claim has played out was: a letter from a solicitor representing a Sinn Féin member landed warning the politician about a public statement they made which the letter claimed was defamatory. There were demands for engagement, an apology and a commitment never to make the statement again before the horse-trading began on an agreed amount to be paid in damages.

In another case involving a tweet, settlement negotiations involved discussions over the text of an apology to be tweeted.

Punitive legal costs from the politician defending the case in the High Court heighten the risk; exorbitant legal fees can eclipse damages to be paid following a court case.

One source said Sinn Féin’s rising public popularity would especially discourage someone defending a defamation case in court before a jury of citizens. Even an amicable draw in court can result in tens of thousands of euro in legal costs, pressuring politicians to agree to a climbdown to avoid time, risk and costs in the courts.

It is incredibly worrying that this is becoming so normalised a tactic that other politicians are expecting legal threats for participating in the political back and forth

The consequences are not just financial for the politicians in question; those embroiled in the legal complaints talk about keeping their heads below the parapet and pulling their punches in any subsequent public statements or political discussions about Sinn Féin.

“I know from talking to colleagues that we don’t engage with them online as much as we used to. You definitely think twice about opening your mouth because it is not worth the hassle,” said one Fianna Fáil politician.

“This reverberates through the party. You just think twice and put the head down. The fact that the Taoiseach is getting involved shows it is a massive problem.”

A politician in another party said the aggressive reaction from the party’s online volunteers has left many politicians thinking twice about criticising Sinn Féin on social media. He considers solicitors’ letters as “another tool” used by the party to suppress and discourage criticism.

“It has a chilling effect on those of us in politics who just don’t think it is worth it,” he said.

While Sinn Féin denies funding legal threats by individuals, there is a perception among opponents that the party could “go the whole way” to court because it has the finances other parties do not have.

“If an individual were to get a letter from a Sinn Féin member, it would cause you to reflect because if they did want to make your life difficult, they really could,” he said.

A spokesman for Sinn Féin said any decisions on legal actions is a matter for the individual concerned and is “only taken in the most serious of situations, particularly given the costs involved. There is no internal mechanism or process within the party for what are individual decisions”.

Sinn Féin’s political opponents have seen how defamation cases taken by the party’s members against media outlets have resulted in big payouts — another factor chilling politicians.

Among the cases was the 2021 legal action taken by Sinn Féin Cork South Central TD Donnchadh Ó Laoghaire. He received more than €150,000 in settlement of a defamation claim against RTÉ for comments made about him on Joe Duffy’s Liveline radio phone-in show.

In 2015, Ms McDonald, then Sinn Féin’s deputy leader, and the party’s finance spokesman Pearse Doherty received about €100,000 between them from the Irish Examiner after the two TDs sued the newspaper the previous year over an editorial and opinion column.

In total, the damages paid out by media outlets in Sinn Féin-related cases amount to a significant six-figure sum, though the party’s members are not alone in taking defamation cases against media outlets.

One Fianna Fáil politician said the defamation court cases were “the tip of the iceberg” on Sinn Féin legal actions: for every court case, there are multiple legal complaints made privately against politicians. The source said at least four Fianna Fáil politicians had received legal complaints. The chill effect extends to those inside the party with colleagues limiting knowledge of the threats to just a handful of people, fearing that the threat of legal action could be resurrected should word spread, breaching a confidential deal or aggravating unresolved claims.

“People are terrified to open their mouth,” said one politician who received a legal threat.

One Fianna Fáil Councillor in Dublin, who posted a tweet last year about a Sinn Féin member, received a solicitor’s letter, as did about a dozen people who each retweeted the tweet, including a number of senior politicians in different parties. Even though the year-long limit on a defamation court action has expired without legal proceedings being issued, a number of politicians who each received a solicitor’s letter still did not want to comment to The Irish Times when contacted.

[ FF TD denies he defamed Sinn Féin leader Mary Lou McDonald in a tweet ]

Looming large for politicians in receipt of the legal warnings is the case of former Fianna Fáil TD for Co Louth Declan Breathnach who in 2020 apologised to Ms McDonald for a reply he made to a tweet she posted in support of the now-retired Garda Sgt Maurice McCabe.

It is understood that solicitors for the Sinn Féin leader initially sought €100,000 from Mr Breathnach before settling for €30,000, a costly sum for a single tweet. Mr Breathnach is said to have been concerned about potentially high legal fees should it have gone to trial. He declined to comment.

The financial risks to politicians from these legal threats were so great that it led Fianna Fáil TD Niall Collins, a treasurer of the party, to ask the party’s leadership in the past to consider financially underwriting members facing legal threats given that the complaints may relate to public statements made on media programmes when they were representing Fianna Fáil.

There was a reluctance to offer this support because some complaints may arise from statements made on social media outside of media commitments when they are representing the party and during their personal time.

Dr Jane Suiter, professor of political communication at Dublin City University, said the State’s defamation laws have led to high-damages and high-cost legal actions and were already viewed by the European Commission as an inducement to self-censorship for the Irish media.

If the laws were being used in a “chilling way” as “a silencer” in politics against rival politicians, then they should be reformed as “a matter of priority” by the Government, she said.

The Index on Censorship, a UK-based non-governmental watchdog, expressed concern about the legal threats against politicians, pointing out that much of the chill effect from Strategic Lawsuit Against Public Participation or Slapp actions “happens way before it goes anywhere near courts”.

“It is incredibly worrying that this is becoming so normalised a tactic that other politicians are expecting legal threats for participating in the political back and forth,” said Nik Williams, policy and campaigns officer at the Index on Censorship.

[ Mary Lou McDonald defends defamation case against RTÉ ]

The watchdog has filed media freedom alerts to the Council of Europe over a defamation case taken by Ms McDonald against RTÉ this year, and over a legal claim taken by Sinn Féin MLA Gerry Kelly, a former IRA member, against journalist Malachi O’Doherty and columnist Ruth Dudley Edwards claiming that both cases have characteristics of a Slapp action.

It should be noted that defamation cases taken by political figures are not unique to Sinn Féin.

In 2016, a Fine Gael activist George O’Connor apologised at the High Court to one of the party’s councillors in Co Meath, Paddy Meade, after Mr Meade sued him over a false text message Mr O’Connor sent to six party members concerning his tax affairs.

In 2019, Fine Gael councillor Ted Leddy, a constituency ally of then taoiseach Leo Varadkar, sued a Sinn Féin activist Alan Donnelly over what he claimed was a defamatory statement posted on Facebook. Mr Donnelly issued an “unreserved apology” in settlement of a defamation action.

In response to queries about the legal complaints from its members, a Sinn Féin spokesman said: “All citizens have the right to protect their name and reputation, and such fundamental legal rights in no way cut across or undermine robust political debate, which happens every single day of the week in the Oireachtas and in the media.

“Any examination of either the Dáil record or media reports would show that our political opponents use any and all available opportunities to challenge and attack us, and that is their right. All we ask is that it is based on fact and truth.”