Mr O'Brien and the IBRC trying to suppress the script of the report.

RTÉ lawyers argue it is too late to stop O'Brien story

Lawyers for RTÉ have said it is too late to stop a story about Denis O'Brien's banking affairs, as much of the information has already come into the public domain.

The High Court was told all RTÉ was trying to do was put flesh on the bones of allegations already made in the Dáil by independent TD Catherine Murphy.

Mr O'Brien is continuing his application to the High Court to stop the broadcast of the report.

Senior Counsel David Holland said Mr O'Brien was putting the case at the level of principle. But he said it was too late to stop this particular story.

The allegations had already been made in the Dáil.

Mr Holland said it was State money that was being dealt with in relation to Mr O'Brien's loans.

If it was the case that Mr O'Brien was allowed to pay off loans in his own time, that was the conferral of a very significant financial benefit.

He said Mr O'Brien and the IBRC were trying to suppress the script of the report.

Mr Holland said the focus of the report was the governance of IBRC but it was no small matter that the debtor in question was Mr O'Brien.

He said: "We were being told that Denis O'Brien has the same right to privacy as anyone else and was no different because he was wealthy.".  But he said that was highly naive.

He said Mr O'Brien had a right to privacy in a broad sense but in practice it was never going to be the same right as anyone else.

Mr Holland said Mr O'Brien was not just wealthy. He had the power that money can buy. He said he had used his wealth to acquire power.

He said Mr O’Brien was entitled to do so and he was not suggesting that he misused his power in any way. But he had power and he could not complain if the media - one of whose public roles was to monitor the powerful - did its job.

He said Mr O'Brien was Ireland's most powerful media baron. He did not suggest he had misused his power in any way. But someone with that power over the media was not a private person, but a public figure.

He said he fell into the group of businessmen identified by the European Court of Human Rights as inevitably open to close scrutiny. He said his media ownership put him in that position.

O'Brien's action against RTÉ 'matter of principle'

Mr O'Brien has said he is trying to stop RTÉ broadcasting the report about his private banking affairs "as a matter of principle".

His lawyers asked if Mr O'Brien let this go, where would it stop? 

They said RTÉ was crossing a line in seeking to broadcast the precise size of his loans with the IBRC, the precise repayments he has made, the precise speed with which he has made them and the details of his negotiations with the IBRC.

His Senior Counsel, Michael Cush, said his client was acutely aware that bringing this application had drawn more attention to this story than it would ever have received if it was broadcast.

He said Mr O'Brien was also aware that some people would always believe he was trying to hide something by bringing the proceedings, but he was doing this as a matter of principle.

Mr Cush read a document, sworn by RTÉ's Business Editor, David Murphy.

Large parts of this document have been blacked out as a result of reporting restrictions imposed by the court.

Mr Cush said there were a large number of references by Mr Murphy in his affidavit to Siteserv but he said the script of the report RTÉ intended to broadcast did not refer to Siteserv at all.

He said it was entirely legitimate for RTÉ or anyone else to say Mr O'Brien was very wealthy.

He said it was perfectly legitimate to say he was a major debtor of IBRC.

He said it was perfectly legitimate to say a company under his control purchased Siteserv.

He said it was perfectly legitimate to say there were concerns about IBRC generally and its handling of the Siteserv transaction and he said it was legitimate to describe his role in Irish life.

But he said a line was crossed when you seek to identify the precise size of his loans, the precise repayments he had made and the precise speed with which he had made them as well as details of his negotiations with the bank.

Mr Cush said because of the intervention of Ms Murphy in the Dáil the fact that he had sought an extension of his loan facilities could be reported.

Mr Cush said every single line of Mr Murphy's proposed script referred to confidential information.  

But he said there was nothing to suggest any wrongdoing.

He said that begged the question why was Mr O'Brien so exercised about the disclosure of this information.

He said firstly Mr O'Brien believed the disclosure would damage him commercially in a way he would never be able to prove.

But, more importantly he said, this was a matter of principle.

"If Mr O'Brien let this go, what's next?  Where does it stop? Once it starts it is insidious," he said.

Next time he would have to have the debate against the backdrop of information already disclosed.

He said Mr O'Brien was acutely aware that bringing this application had drawn more attention to these issues than the story would ever have garnered if it had been aired.

He said he was also aware that some people would always believe he was trying to hide something by bringing this application.

He said that was a dilemma he faced and so be it. He was doing this as a matter of principle. 

He said this information was confidential and the judge would hear a debate as to whether it was in the public interest to disclose it.

Mr Cush argued that the court should prevent the broadcast of the RTÉ report pending a full trial of the issues.

He said they would be willing to cooperate in an early hearing of the matter.

He said this particular story about the governance of the IBRC was not going to go away any time soon. 

The minister for finance had begun an inquiry that was going to take some time.

He said the governance of IBRC, which was the professed focus of the story, was going to be an issue for some time.

Mr Cush asked what contribution did publishing the precise details of Mr O'Brien's indebtedness, the payments made, the speed of those payments make to the public interest in the governance of IBRC.

He said the answer had to be none.

Mr Cush has finished his submissions.

O'Brien describes RTÉ report as 'outrageous'

In a sworn document, Mr O'Brien said the report was "outrageous" prying into his private banking affairs in a report of which he was not the focus.

He said the information was acknowledged to be confidential to him and there was no suggestion of wrong doing.

It was clearly trying to use his confidential information to promote this proposed story.

He was being placed in an invidious and unique position compared to other citizens.

The court also heard a statement from an independent banking expert, Marcus Trench, sworn on behalf of Mr O'Brien.

Mr Trench said the disclosure of the information would seriously undermine Mr O'Brien's bargaining position with other financial institutions and could lead them to impose stricter terms.

He said it would affect their willingness to deal with Mr O'Brien.

Mr Trench said the mere fact of the disclosure of his personal private banking was likely to be sufficient to damage his reputation as a customer and impact on the terms of credit available to him.

He said lending institutions would not like to see details of how they deal with Mr O'Brien in the public domain and if that was possible it would impact on their willingness to engage or deal with him and would impact on the terms of credit available to Mr O'Brien.

Court told IBRC has duty of confidentiality

Lawyers for the IBRC said RTÉ could not cloak the dealings between a bank and a private customer with a veneer of public interest just because the dealings might be of interest to the public.

Senior Counsel Michael Collins said a bank had a duty of confidentiality to its customers and had its own right to the confidentiality of its relationships with its customers.

He said the bank was not in court because Mr O'Brien was a famous person. He said the bank was there because Mr O'Brien was a customer of the bank and entitled to the same rights of confidentiality as any other customer.

Mr Collins said a bank's reputation depended in part on the fact that it observed its duty of confidentiality.

He said RTÉ was relying on the concerns expressed by the Department of Finance in 2012 about IBRC to justify the broadcast.

He said these concerns were mainly with the remuneration of executives in IBRC and had nothing whatsoever to do with Mr O'Brien.

The only reference to Mr O'Brien in minutes of a 2012 meeting was Mike Aynesley's comments that the relationship with Mr O'Brien was strong but not inappropriate.

He said there was a heavy burden on anyone who seeks to breach the confidential relationship between a bank and its customers.

Mr Collins said RTÉ laid heavy emphasis on the freedom of the press. But he said it was hard to understand why a journalist's story with a legitimate interest in the corporate governance of the bank should stray into matters which were no part of the corporate governance concerns expressed by the department.

He said the public might be interested in the affairs of a celebrity.

But he said there was a huge distinction between Hello magazine and RTÉ. In Hello, the celebrities consented to the publication of material. He said in this case, a private citizen had not given consent to the publication and was entitled to expect his bank to uphold the confidentiality of their relationship.

He said there was a public interest in people being able to be confident that confidentiality between a bank and its customers would be upheld.

He said no matter how valuable the freedom of the press is, the press cannot trample over the private rights of a private citizen on the basis of a tenuous link between the corporate governance of IBRC and the private financial affairs of a customer of that bank.

Distinction between right to privacy and right to confidence

Lawyers for RTÉ told the court that Mr O'Brien and the IBRC had completely failed to engage with or even grapple with the importance of freedom of expression.

Mr Holland SC said a judge had said freedom of expression was the lifeblood of democracy - a statement that would have been seen as hyperbolic if it had come from a journalist.

He said there was a distinction between the right to privacy and the right to confidence.

He said privacy was protected in its own article in the European Convention of Human Rights and confidence was protected only as an exception to the right to freedom of expression in Article 10 of the Convention.

Mr Holland said this was important when it came to balancing the right to privacy with the right to freedom of expression. The right to confidentiality was completely different. 

He said this was an exception to be carved out of the freedom of expression only to the extent necessary in a democratic society.

He said the right to privacy was generally about things like marriage, sexuality, home and family life.

This case was not concerned with those things.

This case was about the business relationship between Mr O'Brien and the bank but said he was not saying that was incapable of being protected by the right to privacy.

But he said the right to privacy with which this case was concerned, was not weighty enough to outweigh the right to freedom of expression because it related only to business affairs.  

The case will continue tomorrow.