The Independent is reporting that Richard O’Rawe, one of the former IRA paramilitaries who was interviewed as part of the Belfast Project and whose interview was produced to the PSNI under the subpoenas, is suing Boston College in the High Court in Belfast. An alert reader brought to story to my attention and wondered what I thought about it.
For one thing, it’s too bad the case will be in Belfast instead of in Boston. It’s bad for me, because I won’t really be able to cover the proceedings. It may well be bad for O’Rawe, as it gives BC opportunities to raise defenses to the court’s jurisdiction, to the venue, to the convenience of the forum, etc. But issues of the proper forum aside, what is the case about? I suppose the claim will be for breach of contract insofar as the contract called for the interviews to be kept confidential. But—and I preface this by saying that I don’t know which law the Belfast court will apply to the contract, and that I don’t know what the law of Northern Ireland has to say on such issues—wouldn’t compliance with the subpoena be an absolute defense to the claim? I am thinking of cases such as Ventura v. Cincinnati Enquirer, 246 F. Supp. 2d 876 (S.D. Ohio 2003), aff’d, 396 F.3d 784 (6th Cir. 2005), where a reporter disclosed a source’s identity to a grand jury pursuant to a subpoena despite a promise of confidentiality. The court held (under Ohio law, which may or may not be the same on this point as Massachusetts law or Northern Ireland law) that the reporter was absolutely immune from civil liability, notwithstanding the source’s argument that the reporter should have done more to avoid revealing the source’s identity. That seems like the right rule to me.
Another objection: isn’t it an implied term in the contract that BC’s promise of confidentiality was subject to legal compulsion? Put another way, suppose the contract had said: “We promise never to disclose the interview, even if we receive a grand jury subpoena.” Would such an agreement be valid? I think not.
And anyway, what are O’Rawe’s damages? According to the Independent, O’Rawe claims “distress, stress, and serious inconvenience resulting from intimidation and reputational damage.” In essence, his claim is for emotional distress, it seems. (His reference to “reputational damage” can’t really be a reference to libel, can it?) It’s hard to know if this will fly. “Recovery for emotional disturbance will be excluded unless the breach [of contract] also caused bodily harm or the contract or the breach is of such a kind that serious emotional disturbance was a particularly likely result.” Restatement (Second) of Contracts § 353. On the other hand, Massachusetts law doesn’t bar emotional distress damages in all contract cases: “There is no seneral rule barring such items of damage in actions for breach of contract. It is all a question of the subject matter and background of the contract …” Sullivan v. O’Connor, 363 Mass. 579 (1973).
In short—this will be interesting.