Mr Brian O'Donnell and Family and the Irish Independent

The Press Ombudsman has upheld a complaint made by Mr Brian O’Donnell and his family that the Irish Independent, in its print and online editions, breached Principle 5 (Privacy) of the Code of Practice of the Press Council of Ireland.   The decision was affirmed by the Press Council on appeal.

On 15 April 2017, the Irish Independent published in its print and online editions an article under the heading in the print edition “Bankrupt O’Donnells living in plush home in banker heaven ‘the garden of England’”. The article reported that Mr O’Donnell and his family, following his bankruptcy in Ireland, were now living on “the Kent-Surrey border”. The article was accompanied by a number of images including a photograph of Mr O’Donnell and a reporter at the front door of his home.

The family wrote to the editor of the Irish Independent to complain that the article was a  “breach of privacy, prejudice, harassment and inaccuracy”. They claimed that despite Independent News and Media having contact details (mobile phone numbers and email addresses) for members of the family they had not been contacted before a reporter turned up uninvited at their home.  Mr Brian O’Donnell answered the door to the reporter and told him that he would give no interview or comment and that the reporter should go away. A photograph of the meeting at the doorstep was taken and published without the O’Donnell family’s knowledge. This the family claimed was a breach of privacy, as Mr O’Donnell was inside his house.

As the editor of the Irish Independent did not respond to the family’s letter of complaint within two weeks (the timeframe for a response allowed for in the complaints procedures of the Office of the Press Ombudsman) the O’Donnell family complained to the Office of the Press Ombudsman that the article published on 15 April had breached a number of Principles of the Code of Practice.  In particular, the family stated that Principle 5 (Privacy) had been breached by the publication of the photograph of Mr Brian O’Donnell inside his home. Principle 5.6 states taking of photographs of individuals in private places without their consent is not acceptable, unless justified by the public interest.

Solicitors representing the Irish Independent made a submission to the Office of the Press Ombudsman in response to the O’Donnell family’s complaint. They defended the publication of the photograph by stating that Mr O’Donnell was “not engaged in any personal, private activity” at the time the photograph was taken and that the photographer had not set foot on private property and had taken the photograph from the street. The photograph was published to illustrate that Mr O’Donnell was resident in that particular house, they said.

They also defended the publication of the article on the basis of the public interest stating that Brian and Patricia O’Donnell had both been adjudicated bankrupt in Ireland and were therefore public figures. They also had been involved in exceptionally high-profile court cases in Ireland and the United Kingdom concerning their large debts.  They went on to state that “in circumstances under which two undischarged bankrupts are living in an exceptionally luxurious property” it is “patently obviously a matter which the media are entitled to report upon, comment upon and communicate”.

The O’Donnell family responded to the newspaper’s submission. They stated that “individuals have the right to privacy and the rights that their image and details of their home life not be used to sell newspapers without their consent”. They stated that Mr Brian O’Donnell was “inside his house” when his photograph was taken.  They further stated that there was no public interest in publishing the article.

As it was not possible to resolve this complaint by conciliation it was sent to the Press Ombudsman for a decision.

I am upholding this complaint as a breach of Principle 5 (Privacy). The article was accompanied by a photograph of Mr O’Donnell standing inside his house. He had a reasonable expectation of privacy within his own home and the photograph was published without his consent. The Irish Independent used the public interest argument to justify publishing the photograph but the public interest could have been as well served without the publication of the photograph. Upholding this part of the O’Donnell family’s complaint does not mean that the right to privacy within the home is absolute, there may be occasions where the public interest overrides the rights of privacy.

Other parts of the O’Donnell family’s complaint were not upheld.

Principle 1 (Truth and Accuracy) and Principle 2 (Distinguishing Fact and Comment)

The family claimed the article breached Principles 1 and 2 in the following references:

The family complained that the reference in the article to Mr Brian O’Donnell as a former billionaire was inaccurate.  The newspaper stated this was not a substantive matter, and referred to a previously published article where Blake O’Donnell described his father as a “billionaire”.  This was disputed by the family.

• I have insufficient evidence available to me to make a decision on this part of the complaint. In addition, the term “billionaire” is used colloquially to describe a very wealthy person and does not necessarily suggest such a person has assets of a billion euros.

Mrs Mary O’Donnell was described in the article as a bankrupt. The family stated that she is a discharged bankrupt. The newspaper offered to publish a clarification.

• In my opinion, the newspaper offered to take action which was sufficient to resolve this part of the complaint.

The O’Donnell family’s house in Kent was described in the article as a farmhouse in the stockbroker and banker belt.  The family complained that this was inaccurate. The newspaper offered to publish a clarification.

• In my opinion, the newspaper offered to take action which was sufficient to resolve this part of the complaint.

The family complained that the language used throughout the article to describe the area where they lived was inaccurate and pejorative and therefore reflected the opinion of the writer rather than the facts.

• Although the language used to describe the area where the O’Donnell family live was somewhat florid I do not regard it as a breach of the Code.

The family complained about a reference in the article to the involvement of the Land League in the seizure of their previous Irish home.

• I have insufficient evidence to make a decision about this matter.

The family complained about references in the article to the types of cars parked outside their home, together with details of the location of the house, the cost of renting it and its value.

• These references were not of such significance as to breach the Code of Practice.

The family also complained about the publication of photographs of their old family home in Ireland.  The publication of these photographs did not breach the Code of Practice.

Principle 3 (Fair Procedures and Honesty)

The family claimed that the newspaper obtained photographs of Mr O’Donnell by misrepresentation, subterfuge and harassment.

• No evidence of misrepresentation, subterfuge or harassment in the procuring of photographs was produced, so I am not upholding this part of the complaint.

The family also complained that the journalist entered private property in going to the front door of their house.  They said that despite being told to go away he returned the following day in a second attempt to obtain an interview or comment from the family.  The newspaper justified the second visit of the journalist to the O’Donnell family’s home as an attempt to ascertain if there was a change of view by the family on the request for an interview or comment.

• I am not upholding this part of the complaint as I consider that the journalist was entitled to call to the front door of the house and that a second visit to confirm the outcome of the first visit was not a breach of the Code of Practice.

Principle 8 (Prejudice)

The family claimed that the article breached Principle 8 as it was designed to stir up hatred of Brian O’Donnell and the O’Donnell family on “the basis of their Irish nationality”.

• I am unable to find any evidence in the article that the O’Donnell family’s nationality was used to stir up hatred.

8 June 2017

The newspaper appealed the decision of the Press Ombudsman to the Press Council of Ireland.

Decision of the Press Council

At its meeting on July 14 the Press Council admitted the appeal from the Newspaper on the grounds that significant new information was available that could not have been or was not made available to the Press Ombudsman before he made his decision.  The Press Council considered and rejected the appeal on the grounds that the new information provided - that the address where the photograph was taken was the address of Blake O'Donnell for the purposes of the Solicitors Regulation Authority and the Law Society of Ireland - was not sufficient to justify the breach of the privacy of Mr Brian O'Donnell.  The Council therefore upheld the decision of the Press Ombudsman.