THE BLOG

Safety never takes a holiday

25/09/2013 13:37 BST | Updated 24/11/2013 10:12 GMT

Reputation matters. Individuals, businesses, charities and all types of entities are taking more and more proactive action and, in some cases, aggressive steps to protect it. Reputation is worth protecting, the question is whether an action in defamation is the best way to do so? The recent Ryanair safety case has reminded me once again of some of the issues I run into acting for parties on both sides of the fence, and why it is important to carefully consider the position before taking any steps to either protect your reputation or attack someone else's.

The current law recognises that trading corporations and companies have reputations which can be ruined by defamatory statements, sometimes called "corporate libel". In my view, corporate entities should sue for vindication of their reputation rather than for financial compensation. The key issue is maintaining the credibility of the company on which it trades. It is always important to remember that while it is very easy to get into litigation it is difficult to get out of it, not to mention costly. Do not sue unless you are prepared to see it through to the, sometimes, bitter end.

One of the main considerations I encourage a corporate entity to consider is how the litigation itself will reflect on its reputation. Will taking action create a wider audience for the defamatory material than it already enjoys? Will members of the public see it as a big bad corporation trying to smother freedom of speech in an unequal legal conquest, particularly if the defendant is a private individual with limited resources?

Before considering the Ryanair case it is worth looking back at another, involving McDonald's. McDonald's was accused of causing a broad range of environmental crises and sued two environmental campaigners who had published and distributed libelous material in a pamphlet. The litigation was ultimately largely successful, but that is not the bit that people remember. The litigation lasted seven years, cost £10 million and the court upheld three of the campaigners' claims. It failed to prevent further widespread publication of the offending material. It is therefore questionable whether it was a worthwhile victory.

The ongoing Ryanair case has arisen following a Channel 4 Dispatches programme, Ryanair: Secrets from the Cockpit, which aired on 12 August 2013. It featured interviews with four pilots who fly Ryanair planes, one who was identifiable, in which they spoke of concerns about Ryanair's fuel policy and working conditions.

If justified, there is little doubt that most people travelling on planes would want to feel comfortable that issues like these could be exposed and dealt with to ensure safety is maintained. Investigative journalism is one way of doing so. However, it is only fair that any business (or individual) should be able to defend itself and this is no more obvious than in a case where that business' viability stands or falls on the fundamental accusations made. As Michael O'Leary, Ryanair's Chief Executive Officer has said, he had no other option than to pursue legal action because "any airline can only survive on a reputation of safety".

"Generally speaking we are content to allow the media or anybody else to make whatever claims they want but not inaccurate claims about our safety. We must and will continue to vigorously defend our outstanding safety record."

Any doubts about safety would inevitably lead to customers going elsewhere. Ryanair has clearly decided attack is the best form of defence and they appear to be suing everyone under the sun (I cannot tell you how envious I am of their solicitors!). Proceedings have reached various stages.

Those against the Belfast Telegraph were dropped after the newspaper published an apology online for its article - "Are budget airlines like Ryanair putting passengers at risk?" This demonstrates prompt action can quickly bring an end to proceedings and should always be considered as a "get out of jail free card" to avoid potentially very expensive litigation and limit any damage to your own reputation.

The Daily Mail repeated claims made in the Dispatches programme and its publisher, Associated Newspapers, were sued. An out-of-court settlement was reached with an agreed statement being read out in the High Court in Belfast on 12 September. It is unknown whether any damages were paid.

Ryanair is also continuing to pursue Blakeway (the production company of the Channel 4 Dispatches) in relation to the broadcast which Ryanair's Chief pilot, Captain Ray Conway, states "sought to undermine [Ryanair's] internationally acknowledged safety record spanning three decades".

Captain John Goss meanwhile, an employee of 27 years' service and the only Ryanair pilot to identify himself in the documentary, has been dismissed for "gross misconduct" with immediate effect. Ryanair has also issued proceedings against him for comments made in the documentary. Those proceedings are ongoing. It is unclear whether he has brought Employment Tribunal proceedings for potential whistleblowing

It is clear from the statement made in open court that there are four main issues Ryanair is keen to clarify.

First, the programme and subsequent coverage made reference to the results of a survey conducted by the interim council of the Ryanair Pilot Group. Ryanair do not accept the results of the survey as they do not believe the group represents the views of the majority of Ryanair pilots. Apparently the Chairman of the group is a KLM pilot. Interestingly the Ryanair Pilot Group issued a press release on 15 August 2013 which was supportive of Captain Goss. The Chairman, Captain van Zwol, stated, "Safety experts are agreed that a sound safety culture is based on pilots having faith in a non-punitive approach and dealing directly and transparently with all concerns raised."

Second is in respect to the three emergency landings in Valencia. The statement given in to Belfast High Court stated the official report produced by the Irish Safety Agency confirmed all three aircraft took on extra fuel as all three flew for over one hour more than planned (due to adverse weather and divisions from Madrid to Valencia). All three aircraft "fully complied with EU safety rules when landing safely in Valencia.

Third (which I suppose goes to the whistleblowing point above), if the Ryanair pilot had safety concerns they were told to report these to the airline itself or the Irish Aviation Authority using their confidential safety reporting systems.

Finally, the statement given stated that the Irish Aviation Authority recently issued an independent confirmation that Ryanair's safety was on a par with the safest airlines in Europe and acknowledge Ryanair's Industry leading 29 year safety record.

Based on the above I hope Blakeway and Captain Goss are sure of their position because it's harder to keep going when other defendants are folding. Channel 4 have confirmed, "We stand by our journalism and will robustly defend these proceedings." I think it will be interesting to see what happens next!