Sunday 17 December 2017

Analysis: European ruling should see future libel awards being greatly reduced

The European Court of Human Rights
The European Court of Human Rights
Shane Phelan

Shane Phelan

The decision of the European Court of Human Rights (ECHR) to uphold a complaint over the manner in which a public relations consultant was awarded €1.25m in libel damages is highly significant.

It should, in theory, have a major impact in depressing the size of future libel awards.

Public relations consultant Monica Leech was initially awarded over €1.8m by a jury in the High Court over articles published by the Evening Herald newspaper in 2004.

The size of the award was shocking.

It was made at a time when the law did not allow judges to give guidance to juries on the size of awards.

Independent News & Media, publishers of the Evening Herald, as the Herald newspaper was then known, appealed to the Supreme Court.

In 2014, it set aside the High Court award and substituted a sum of €1.25m in its place.

The ECHR was somewhat critical of the manner in which this was done, effectively saying the safeguards against disproportionately high libel awards that were in place under our system of appeal were not good enough.

It said there was not much of an explanation as to how the new figure had been arrived at.

The fact judges were restricted from giving guidance to juries at the time of the initial award was also not discussed in much detail by the Supreme Court.

This led the ECHR to conclude that safeguards to avoid unreasonably high damages awards were not effective in this case.

All of this led the ECHR to conclude that there had been a violation of Article 10 of the European Convention on Human Rights, which provides a right to freedom of expression and information.

Such awards have a chilling effect on freedom of expression, it said, and therefore there must be adequate safeguards.

The law was changed subsequent to the High Court award and judges now have the ability to give guidance on the size of awards.

However, in practice this is not happening to any great extent.

Before judges can advise a jury on the assessment of damages they take submissions from the parties involved.

However, there has been a fear in media organisations of talking about figures at all in court.

This is because the Leech Supreme Court ruling set the bar so high.

Now the ECHR ruling effectively removes Leech as a high benchmark for serious defamation awards.

It is also a warning shot across the bows of the Irish courts that juries must be properly instructed regarding the appropriate size of libel costs, and should usher in a period where the 2009 Defamation Act is utilised properly.

The ruling also provides food for thought for the Department of Justice, which is currently reviewing the operation of the Act.

Media groups argue that the current defamation regime in Ireland is among the most oppressive in Europe.

One only has to look at the UK to see how out of kilter awards here are.

The UK has an effectively a cap of Stg£275,000 (€313,000) and in reality awards rarely exceed Stg£100,000 (€113,000).

NewsBrands, the representative body for national newspapers, both print and online, has warned the level of awards in defamation cases presents a huge challenge to freedom of expression and could also threaten the very existence of media organisations.

Uncertainty surrounding awards prevents a publisher from ascertaining the extent of potential liability.

Given the costs involved, many newspapers simply won’t take the risk of publishing an article, no matter how certain they are of their facts.

Online Editors

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