The High Court has refused Gerry Adams’s application to strike out the BBC’s defence of fair and reasonable publication in his defamation action over a 2016 online article alleging he sanctioned Denis Donaldson’s killing. The court did not decide whether the defence will succeed; it said that question depends on evidence and is for a jury at trial.
Mr Justice Emily Egan delivered the judgment on 11 March 2022. Adams argued that the BBC’s continued online publication of the article without a notice explaining that the allegation was disputed meant the defence under section 26 of the Defamation Act 2009 was bound to fail. The BBC disputed that position, relying in part on the Act’s single publication rule.
The judge said the absence of a qualifying notice could be relevant to whether publication was fair and reasonable, but it was not necessarily decisive. The effect of the single publication rule on the relevance of the BBC’s later conduct raised complex legal issues that should be addressed at a full trial. The court also noted that the application concerned the article, not the separate television programme, and that other issues, including the meaning of the words, remained disputed.
In a separate application, the BBC sought discovery of documents relating to Adams’s association with the IRA and his knowledge of the IRA’s treatment of informers. The judge found the first category potentially relevant to the BBC’s pleaded fair-publication defence and its arguments about Adams’s reputation. The judge said discovery may include material that is not ultimately admissible at trial.
The court ordered discovery limited to the earliest and latest documents evidencing Adams’s membership of the IRA, and the earliest and latest documents evidencing his membership of the IRA Army Council. It refused discovery of the second category, finding its relevance unclear and the request too vague and potentially burdensome.
The judgment did not determine the truth of the allegation that Adams sanctioned the murder, whether the article was defamatory, or whether the BBC’s defence would succeed. The court reserved costs and related matters for argument on 25 March 2022.