€310k 'swingers' case award to former GAA player stands, says Appeal Court

Brian "Spike" Nolan. Pic: Courtpix

A €310,000 award to a former Kildare Gaelic footballer for defamation in two newspaper articles about swingers' parties and the sex trade has been upheld by the Court of Appeal

In May 2017, the High Court found Brian "Spike" Nolan (aged 50) was grossly defamed in Sunday World stories in July 2012 and March 2013.

The articles falsely claimed he organised adult "swingers' sex parties" and they were accompanied by a number of photographs, including those of Mr Nolan in the company of scantily clad women.

He was awarded €250,000 for defamation in general damages along with another €60,000 in punitive and exemplary damages.

Today, Mr Justice Michael Peart, on behalf of the three-judge Court of Appeal reduced the €250,000 general damages to €200,000 and kept the other categories of damage at €60,000.

However, he added another €50,000 for breach of Mr Nolan's constitutional right to privacy which meant the overall €310,000 award stood.

Sunday Newspapers, publishers of the Sunday World, had brought the appeal claiming the High Court erred in its findings and that the award was disproportionate.

Mr Nolan opposed the appeal and cross-appealed in relation to the High Court judge's finding that his constitutional right to privacy had not been engaged.

Mr Justice Peart was satisfied the High Court was correct to conclude there was "a meaningful distinction" between a person who attended these parties and an organiser. The newspaper argued there was no such distinction.

The High Court was also entitled to conclude that by referring in the first (2012) article to Mr Nolan's 2002 conviction for money laundering for a notorious drug dealer that the paper had characterised him as the "principal organiser of orgies in the State with a lurking undertone of criminality".

Mr Justice Peart found no basis for interfering with the trial judge's conclusion that the erroneous reporting of Mr Nolan as an organiser caused injury to his reputation and good name. There was credible evidence to support that conclusion, he said.

The High Court was also correct in finding the articles did not cover a matter of public interest as claimed by the newspaper. The High Court judge said Mr Nolan's rights "will not be thwarted by the vacuous plea that there was a public interest in publishing salacious material without regard to the truth".

In relation to the claim that the award was disproportionate, Mr Justice Peart said the defamation Mr Nolan was entitled to be compensated for was the "serious erroneous statement" that he was the organiser of the parties.

This was a very serious defamation on two separate occasions and Mr Nolan was not to be faulted for remaining silent following the first article in the hope there would be no repeat, the judge said.

In relation to the breach of privacy, Mr Justice Peart said while the party photos used by the paper were provided by Mr Nolan's former partner after their relationship ended, it was implicit that, whoever took them, they would remain private and not be published without his consent.

The newspaper must have been aware publication was an invasion of his privacy, the judge said.

Whether a person is a public figure or not, they have a right to a protective shell, a carapace, of privacy which is recognised and protected by law, he said.

What happened here was a "gross intrusion by the newspaper into that private protected space within his life".

He would not alter the overall award but would "recalibrate" the defamation award and add €50,000 for breach of privacy.

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