Friday 22 September 2017

The road to libel reform is a long one, but we have at last reached a milestone

The European Court of Human Rights' judgment in the Monica Leech case could pave the way for a less punitive defamation regime, writes John Maher

‘The Supreme Court had not really explained how it arrived at a figure of €1.25m’. Photo: PA
‘The Supreme Court had not really explained how it arrived at a figure of €1.25m’. Photo: PA

John Maher

The European Court of Human Rights is an unusual beast. At a guess, many people might think it has something to do with the EU, but find it difficult to say exactly what it does, or how important it is. Some people would probably consider it to be a bit like the European Court of Justice, but with more soul.

In fact, the European Court of Human Rights is not an EU body, but an international court with a very specific function; it protects and promotes adherence to the European Convention on Human Rights, a treaty drawn up more than 60 years ago by European countries still recovering from the ravages of World War II. Human rights were still a fairly new concept back then, and the idea was to create a court where people could find protection if their rights were being trampled on by their state. Upholding the convention was seen as vital to reviving and strengthening democracy across Europe, after a conflict in which democratic norms had been so violently uprooted.

The link between human rights and preserving democratic processes runs right through the decisions of the European Court on Human Rights, especially when it comes to consider how journalism functions in European countries. In the era of fake news, cooked up twitterstorms and dodgy partisan news websites, the need for a reasoned view on whether real journalism is allowed to be practised has never been greater.

The decision last week by the European Court of Human Rights in the case of Independent Newspapers v Ireland is a milestone on the long road toward libel reform in Ireland.

The case arose from a series of articles in the Evening Herald about Monica Leech, a public relations consultant who worked for the then environment minister Martin Cullen. She said the articles defamed her.

In 2009, a High Court jury agreed and awarded her €1.87m in damages - the largest award to that date. On appeal, the Supreme Court reduced the award to €1.25m. In the Supreme Court, Judge Elizabeth Dunne said it was a very serious defamation, but added: "I do not think it could be classed as one of the most serious libels to come before the courts."

These were dramatic words for everyone in the news-publishing business. If €1.25m could be awarded for a libel that was "not one of the most serious libels", where on earth was the top of the scale?

Part of the problem has been that while laws should always be predictable, in practice the result of a libel case is impossible to forecast in Ireland because a jury decides not just the verdict, but also the level of damages. This difficulty has long been known; in 1970s Britain the jury foreman in a case brought by the Kojak actor Telly Savalas said he and his fellow jurors went into the jury room "with not the remotest idea what compensation is paid for anything except perhaps a dented boot and wing; haloes are outside our normal terms of reference. Apparently that is why we were asked". Nor did the law permit much guidance from the judge, as has been the case here, too.

In a later case involving Elton John, the judge felt sorry for jurors trying to figure out awards, saying "they were in the position of sheep loosed on an unfenced common, with no shepherd". English law later took away the automatic right to a jury.

After the Supreme Court awarded Ms Leech €1.25m the newspaper group appealed the amount of the award to the European Court of Human Rights, on the basis that a legal regime which permitted inordinately large and unpredictable payouts to successful plaintiffs must be in breach of Article 10 of the European Convention, which protects freedom of expression.

In practical terms, the unpredictability of jury awards had a strong and continuous chilling effect on news media, the group argued, and this was especially true in Ireland because many news outlets were small and could be put out of business by a big award.

The vibrancy of democracy was at risk if this happened. In addition, such substantial awards were out of kilter with the norms elsewhere, such as the ceiling of about £275,000 (€315,000) for serious libels in Britain. (Even this is a relatively high figure: according to the International Press Institute, libel awards in the Netherlands reach up to €5,000 and plaintiffs in Sweden can expect no more than €15,000, while a cap of some €50,000 applies in Austria, and Portugal's largest award was €75,000.)

Defending the regime, the Irish Government argued that the effect of the defamation on Ms Leech and her family had been enormous (and in breach of the convention's guarantee of respect for private and family life) and that the media should know that such libels would lead to big awards.

Genuine public-interest journalism was well protected by the law, the Government said. As to whether awards in the High Court should be set by a jury, the Government pointed out that the Defamation Act of 2009 retained this feature, so this must reflect the recent view of the Dail on the issue.

In its judgment, the court said it accepted as a matter of principle that large awards could have a chilling effect on journalism. It went on to consider whether the Irish system had safeguards in place to prevent unjustified interference with freedom of expression. The way the trial judge had sought to guide the jury on damages, by telling them to bear in mind the cost of living and to be fair but not too generous, was in line with what was permitted at the time but left him making vague generic comments and was obviously an ineffective safeguard, the court said. It would be better to give clear and specific directions, it said, and it was pleased to hear that more detailed directions were permissible under the 2009 Act.

As to whether the Supreme Court appeal could be called an effective safeguard, the European court saw a real problem here: the Supreme Court had not really explained how it arrived at a figure of €1.25m (one of its judges had even said €1m should be enough). It would have been better to give comprehensive reasons, the European court said, so that the judgment could serve as a benchmark in future cases.

Ultimately, the European court found that the Irish libel regime did breach the convention's Article 10 guarantee of freedom of expression. It offered the newspaper group only €20,000 towards legal costs, however. The court argued - somewhat thinly - that it did not want to get involved in awarding compensation because this would mean second-guessing what the damages figure might have been if proper safeguards had been in place.

Nonetheless, the decision must be seen as a significant development in Irish libel law. In effect, the Irish Government's arguments failed to persuade Europe's human rights watchdog that freedom of expression has been properly protected in this country.

Coming as it does during a period when the Department of Justice is reviewing the Defamation Act 2009, the decision will be an important influence on the thinking that goes into the planned reforms of that legislation.

John Maher is a barrister specialising in media law.

Sunday Independent

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