Saturday 17 March 2018

Sky-high damages have a chilling effect on free press

Publishers in Ireland need a clearer idea of the level of damages they might have to pay, writes Brendan Howlin

Monica Leech was awarded enormous damages of more than €1.8m back in 2004. Picture: Collins
Monica Leech was awarded enormous damages of more than €1.8m back in 2004. Picture: Collins

Brendan Howlin

A free press is something we often take for granted in Ireland. The media should always hold power to account. Sometimes, that makes life uncomfortable for governments, for politicians and for corporations. So they should. Power needs to be held to account. To do so, we need a vibrant and thriving democracy, regulations to outlaw wrongdoing, and a healthy and free media. The media, at its best, serves as a watchdog for the public - that is why freedom of expression matters.

When the courts award enormous damages against a publication, this can have a chilling effect on freedom of expression.

In 2004, this is what we saw happen. A serious defamation published back then resulted in an award of more than €1.8m to Monica Leech in the High Court. An appeal to the Supreme Court saw this reduced to €1.25m - still an enormous sum.

Now, nobody argues that a wrong was not done to Monica Leech. She was subjected to, as the European Court of Human Rights has found, an "unusually salacious campaign". She won her defamation case, and good luck to her.

What is at issue though, is the amount she was awarded. The award in this case seems to have set a new high-water mark for defamation awards. And it might have had an upward pull effect on other cases - dragging awards in Irish courts out of line with those across Europe, and potentially making our media more cautious. While that might initially sound attractive to some of us, in truth that is the last thing we need.

The law was substantially reformed since 2004, by the Defamation Act 2009. The aim of this Act was to update Irish defamation law, taking account of the relevant domestic and European Convention jurisprudence.

It was also the bizarre moment at which Fianna Fail decided that it needed to legislate against blasphemy, as if that were a pressing crime that we needed fresh legislation in relation to.

There were welcome aspects to the new Defamation Act. It changed the law to allow the parties in a defamation case to make submissions to the court in relation to damages. And it also permitted the trial judge to give directions to the jury in relation to damages. Had this Act been in force before to the Monica Leech case, it is unlikely that Independent News & Media would have found itself having to appeal to the European Court of Human Rights.

But the 2009 Act didn't fix all our problems in practice. Many argue that judges still do not give sufficiently detailed directions in relation to damages to juries. We might at least hope that the decision of the European Court earlier this week will bring about some change to that practice. And the award in that case is no longer likely to feature in guidance to juries on future cases. But the unpredictability of awards remains another concern. Publishers in Ireland find themselves in a position that they don't, and can't, know what amounts they might be found liable to pay. Even to the level of whether an award might run to thousands, or whether it might run to hundreds of thousands.

Under the European Convention on Human Rights Act, which the Oireachtas passed in 2003, our domestic laws must be interpreted and applied in a manner consistent with our obligations under the European Convention. So, this week's decision from the European Court is a binding part of the jurisprudence that must be applied by our courts in future cases. But that may not be enough. We may need to demonstrate as a country that we have taken specific and concrete steps to protect freedom of expression in Ireland.

Last November, the Department of Justice started a long-delayed review of the 2009 Act. The outcome of that review is going to provide our best opportunity to make it clear that freedom of expression is a value that we cherish as a nation.

We should be looking at better ways to deal with more cases outside the court system; whether we need a cap on general damages in defamation cases; and the application of laws dating from the era of print media to the online world.

Above all else, the review needs to make sure that the watchdog keeps watching us. The public depends on it.

Brendan Howlin is the Leader of the Labour Party

Sunday Independent

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