Lawyers for the BBC have told the High Court that a defamation action by former Sinn Féin leader Gerry Adams is a cynical attempt to launder his reputation.
Senior Counsel Paul Gallagher was making closing submissions to the jury in a case taken by Mr Adams over a BBC Spotlight programme.
Mr Adams alleges he was defamed in a 2016 programme and a subsequent online article, which he says falsely claimed that he sanctioned the killing of former senior Sinn Féin official Denis Donaldson.
Mr Donaldson was shot dead in 2006, months after admitting to being an informer for the police and MI5 over two decades.
Senior Counsel Paul Gallagher said the case was very much about Mr Adams' reputation and whether or not it was a fair and reasonable publication.
He said in Mr Adams’ own evidence he had acknowledged that "people out there repeatedly said he was a member of the IRA and on the army council".
Mr Gallagher said that was the reputation Mr Adams had and this case was a cynical attempt to launder it.
He said Mr Adams could not come into court and shed his reputation.
He told the jury it was important to remember the actions of the IRA and the "death and the harm and the fear" that it caused on both sides of the border.
Gerry Adams had put himself forward as a peacemaker with no hint of this dimension or element of his reputation or the reality in which it was born, he added.
He said those who produced the programme had the courage to say, "this is something people need to know and were prepared to tell it".
He asked the jury to consider the commitment of the BBC to the preparation and research of the programme on a matter of public interest that people need to know.
It did no good to ignore the past he said, adding "so how do we pierce the past and get over the denials? We need the media. It is essential to keeping this country in a state where we face up to the past and ensure these things don’t happen again."
He said we are "dependent on the Jennifer O’Learys of this world who devote almost a year of their life and have the courage and perseverance to stand by what has been unearthed".
Mr Gallagher said the BBC did not have to establish the truth of the allegation but must show it was presented in a fair and reasonable way.
He asked how could Gerry Adams say his reputation had been damaged by an allegation that he had sanctioned the killing of an informer when in the witness box he had also told the judge the IRA bombing of a Conservative Party conference in Brighton was a legitimate act.
"So paring it away you have someone coming in saying they were defamed by an allegation that they sanctioned the killing of an informer and also thinks it was legitimate to bomb innocent people because they have different views," Mr Gallagher told the jury.
He said the case by Gerry Adams was brought on a fundamental mistake that there was only one source for the allegation when in fact there had been multiple sources.
He said the BBC did not make the allegation, rather it was presented as an allegation made by someone else and also carried Mr Adams’ denial.
Mr Gallagher said there could not be a situation wherepeople in the media are afraid to speak or present something as an allegation because of a fear of being sued.
It was an essential ingredient of democracy at a time where all over the world there was a chipping away of democracy where people were being told what they can say.
"That is what is at stake here," he said.
Mr Gallagher said there was no evidence and nothing to suggest that the programme was not made in good faith.
He did not think the members of the jury could ever get to awarding damages in this case but if they did they must consider Mr Adams’ words and actions in determining any alleged damage to reputation.
He said they could not shy away from this and it could not be a case of "say nothing, ignore and pretend it’s not there".
He told the jury that Mr Adams’ refusal to condemn the actions of the IRA, his carrying of coffins of bombers and his statements about the legitimacy of IRA violence should all be taken into account.
He then "comes into court and says someone alleged I sanctioned a murder and I want damages", Mr Gallagher said.
He said while there may be parts of a reputation you could forget, "how would you forget someone who spent over 30 years of their life with a reputation for the atrocities that the IRA were involved in".
He said it was not about what someone actually did or did not do but what their reputation was.
Mr Adams’ reputation could not be "sliced and diced" to remove or ignore issues at the centre of his claim for damages.
He said the case had been going on for nine years and at the outset the BBC had raised with him that he had been lying about being on the army council.
When the case came to court there was no witness produced by Mr Adams to say that he did not have that reputation, Mr Gallagher said.
He also reminded the jury that while the programme was a serious documentary the viewership in the Republic was agreed to be 15,800 with 729 views of the subsequent article on the BBC website.
Lawyers for Mr Adams told the court the Spotlight programme amounted to reckless journalism and was not fair and reasonable.
In closing arguments, Senior Counsel Declan Doyle urged the jury to award substantial damages, saying the BBC had ignored the significant part of Mr Adams' reputation "as a person who had brought peace to this island."
Mr Doyle said the case was about the balance of the right to free speech with the right to a good name. He said elsewhere so-called free speech advocates are pedalling the "worst kind of filth under the rubric of free speech".
He was not accusing the BBC of this, they were the opposite of that, but free speech was not an absolute right, he said.
He said the right to a good name was a constitutional right and the BBC had distorted the balance between this and free speech because they had nailed their colours to the "Gerry Adams doesn’t have a good name, doesn't have a reputation mast" from the outset of the case.
He told the jury their attitude was important for how they view the rest of the case.
He said the BBC had put it up to them that this was somehow a "shabby, grubby exercise, a cruel joke, a bad joke, a compo claim". He said in Ireland the remedy for any citizen who is defamed is an action for damages and an award of damages was not only compensation for damage to reputation but to vindicate and restore that reputation.
He said the first concept they would be asked to consider is was the programme made in good faith. While not suggesting the BBC had set out to get Gerry Adams the attempts to corroborate the allegations fell so far short of attempting to verify them which is the standard required by the law.
He said it amounted to reckless journalism and a reckless indifference.
He said a bloody conflict of 30 or 40 years would produce lots of people with their own agendas including disaffected republicans and security sources.
He said Jennifer O’Leary had "bleated" about driving around the country having multiple meetings with sources instead of going directly to the Gardai to verify the claim.
Mr Doyle said if she had asked gardaí they would have said Mr Adams was not in the frame. Her suggestion that gardaí were only interested in the "trigger men" was an arrogant insult to the gardaí, he said.
Efforts to verify the story were woefully inadequate and the attempts made by the BBC and the circumstances having regard to the deadly seriousness of the allegation fall way short of discharging the burden of proof that this was a fair and reasonable broadcast, he said.
Mr Doyle told the jury he was confident they would move to the question of damages and in doing so could consider the issue of reputation adding boy oh boy have we had reputation in this case". He said the BBC had run the line that Gerry Adams had ignored the significant part of his reputation. He said this was "cheek beyond belief" because it was the BBC who had ignored his reputation for peace and reconciliation.
Mr Doyle said reputations change over time and much of the material being put to Gerry Adams was from 40 years ago. He said many of the "great heroes of many places maybe had their origins in armed conflict but the one-sided history lesson you got from the BBC this morning was a very long way from the British Army breaking into the Adams home and urinating in their beds."
He said Eamon De Valera, Michael Collins, Nelson Mandela and the ANC "all of those figures from history at some time were involved in violence and just because the BBC does not equate them with what happened in Northern Ireland it does not mean they might not be true."
He said the jury must consider the reputation Mr Adams had in 2016 which was one of a person who "brought peace to this island and was elected and repeatedly elected to the British parliament, the Northern Ireland Assembly and the Dáil and it is not the narrow, biased, limited and reductive reputation as contended by the BBC."
Mr Doyle told the jury that when assessing damages it must consider the nature and gravity of the defamation and there could not be a more serious allegation than one of cynical cold-blooded murder. There could be no other reading that this was a very serious or exceptional defamation and damages should be very substantial.
