The Court of Appeal has upheld a finding that Sunday Newspapers Limited, trading as the Sunday World, defamed Brian Nolan by wrongly describing him as an organiser of sex parties. It also declared that publishing photographs of him at private parties breached his constitutional right to privacy.
The judgment, delivered by Mr Justice Michael Peart on 15 May 2019, arose from articles published on 15 July 2012 and 3 March 2013. The High Court had awarded Nolan €310,000: €250,000 in general damages, €30,000 aggravated damages and €30,000 punitive damages. The newspaper appealed the defamation finding and damages; Nolan cross-appealed the rejection of his privacy claim.
The newspaper accepted at trial that it had incorrectly called Nolan an organiser rather than an attendee. The appeal court rejected its argument that any reputational harm came from his attendance alone. It found the trial judge was entitled to rely on evidence from Nolan’s friend, Tom Power, that people understood the articles to accuse Nolan of organising the parties. The appeal court said the articles’ headlines, photographs and captions conveyed that false meaning, with an implication of criminality.
The court also upheld rejection of the newspaper’s public-interest defence. It noted that the newspaper called no evidence to substantiate the defence, and said the grounds advanced did not make Nolan a public figure in respect of the reporting. On damages, the court found no basis to reduce the overall award. It said the trial judge could consider Nolan’s evidence about the personal impact despite the absence of medical evidence.
On the privacy cross-appeal, the court concluded that Nolan’s agreement to have photographs taken and shared within a limited circle did not amount to consent to publication in a national newspaper or a waiver of privacy. The images were taken at private gatherings; the court noted that some were said to show him at a Halloween party, not a swingers’ party. It found no overriding public interest in publishing them and held that the newspaper’s publication was a grave breach of privacy.
The Court of Appeal allowed the cross-appeal and declared that publication of the photographs in the two Sunday World editions constituted a serious breach of Nolan’s constitutional right to privacy. It varied the High Court order while leaving the total at €310,000: €200,000 general damages for defamation, €30,000 punitive damages, €30,000 exemplary damages and €50,000 for breach of privacy. The judgment describes the original €30,000 component as aggravated damages and the substituted component as exemplary damages.