Sunday 23 July 2017

Irish libel regime criticised in landmark EU judgment

Monica Leech. Photo: Collins Courts
Monica Leech. Photo: Collins Courts
Shane Phelan

Shane Phelan

The European Court of Human Rights (ECHR) has upheld a complaint that a €1.25m libel award to PR consultant Monica Leech was in breach of the right to freedom of expression.

In a landmark ruling, the court found in favour of Independent News & Media (INM), agreeing there had been a failure in the effectiveness of safeguards against disproportionate libel awards.

Ms Leech was awarded €1.87m by a High Court jury after it found she had been libelled in a series of stories published in the 'Evening Herald' in 2004. The figure was reduced to €1.25m by the Supreme Court.

In its decision, the ECHR said the award amounted to a violation of Article 10 of the European Convention on Human Rights, which provides a right to freedom of expression. It also ruled the State must pay €20,000 to INM for costs and expenses related to the case.

The ECHR was critical of the fact that under the law at the time judges were unable to give juries guidance on the appropriate size of libel awards.

There was also criticism of the Supreme Court ruling as there was not a sufficient explanation as to how the €1.25m figure was arrived at.

Strict limitations on judicial guidance to juries that existed at the time were also not discussed by the Supreme Court.

The ECHR said unreasonably high damages for defamation claims can have a chilling effect on freedom of expression, and therefore there must be adequate domestic safeguards so as to avoid disproportionate awards being granted. It found that safeguards in place at the time had not proved effective.

Read More: Ruling should herald reduction in size of libel awards

The ECHR noted the Leech proceedings were conducted under laws which have since been changed with the adoption of the 2009 Defamation Act.

The 2009 Act allows a trial judge to give more detailed directions to a jury as to the assessment of damages.

However, libel lawyers say judges still do not give sufficiently detailed directions to juries in relation to damages, something that is likely to change following the ECHR ruling.

The ruling does not have any impact on the size of the award given to Ms Leech, but sends out a clear message on the need for courts to rein in future awards.

It was welcomed by INM Group Editor-in-Chief Stephen Rae, who called on the Government to take it fully on board in its ongoing review of the Defamation Act.

"The judgment is a very positive step forward in our campaign as journalists to reform the expensive and oppressive defamation law in Ireland," he said. "Inordinate damages awards in libel cases can have a negative effect on freedom of expression in a democracy.

"The ECHR ruling is further proof that the Government needs to pay the issue serious attention.

"Swift action is required to uphold and support trusted and verified journalism across all publishers and broadcasters in Ireland. This is increasingly urgent in the face of the ongoing assault on media posed by fake news and hate on social media platforms."

Justice Minister Charlie Flanagan said the ruling would be studied by the Department of Justice and will be taken into account in its review.

The judgment was welcomed by Press Ombudsman Peter Feeney, who said: "When people are defamed they are entitled to court awards to compensate for their wrongful loss of reputation. But if the award is so large that publishers run the risk of going out of business there is a real risk that democracy will suffer through the suppression of the means of communicating facts and opinions."

NewsBrands Ireland, which represents 16 national newspaper titles, said Ireland's defamation regime imposes enormous burdens on newspapers and presents a huge challenge to freedom of expression.

"The retention of juries and the system of appeals creates delays and also a lack of certainty for publishers who have no way to ascertain the extent of their potential liability," it said.

Irish Independent

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