Thursday 13 December 2018

Time to scrap juries in defamation cases - law conference told

Vincent Crowley. Picture: Arthur Carron
Vincent Crowley. Picture: Arthur Carron
Shane Phelan

Shane Phelan

A conference has heard calls for the abolition of the use of juries in defamation cases and a cap on damages awards.

Vincent Crowley, chairman of NewsBrands, the organisation representing 17 national newspapers, print and online, said the use of juries had lengthened cases, increased legal costs, and led to unpredictable outcomes, particularly in relation to the size of awards.

He also told the Bar of Ireland's ‘Defamation Nation’ conference in Malaga, Spain that new defences introduced in the 2009 Defamation Act had proved too complex to be run effectively before juries.

The conference also heard calls for news publishers to be afforded the same protection as Google and Facebook when it comes to user comments.

He said social media was pervasive and its impact cannot be ignored.

Mr Crowley, a former chief executive of Independent News & Media, said "unverified and unchecked social media comment" had put recent trials, such and the Belfast rugby trial and the Jobstown water protest case, in jeopardy.

"The press needs protection and a system that will target the author, not the newspaper. News websites are currently at a legal and commercial disadvantage to companies such as Google and Facebook," he said.

"Google and Facebook are not deemed to be publishers, yet are purveyors and influencers but seem to take little or no responsibility."

He said recent curbs on advertising related to the abortion referendum by Google and Facebook may be the beginning of a realisation that these organisations do have a responsibility for the content that goes up on their platforms.

Mr Crowley said newspaper publishers in Ireland were looking for "a level playing field", and pointed to the UK where legislation introduced in 2013 gave publishers protections in relation to comments posted to news websites by readers.

A review of the effectiveness of the 2009 Defamation Act, ordered by then Justice Minister Frances Fitzgerald in 2016, has yet to be completed.

Mr Crowley said the current defamation regime serves neither plaintiff nor defendant effectively.

In particular it allows for the imposition of huge damages that are largely out of kilter with awards made in defamation cases in other jurisdictions.

Between 2010 and 2015, in excess of €30m was spent by NewsBrands members defending defamation actions, he said.

Mr Crowley said the award by the Supreme Court of €1.25m to communications consultant Monica Leech, a decision later criticised by the European Court of Human Rights, remained "an overhang" affecting the industry.

This was having an impact not just on awards but on the size of out of court settlements.

"You don’t hear about them because you don’t see them in the newspapers, but settlement amounts run in the hundreds of thousands on a regular basis for relatively minor infractions," he said.

Mr Crowley said jury trials lengthened the time taken to run a case and had led to excessive awards.

He cited the example of the case taken by Sligo man Martin McDonagh against Sunday Newspapers in relation to an article published in the Sunday World in 1999.

An excessive jury award of €900,000 in 2008 set in train a series of appeals that only concluded last year, he said.

Mr Crowley said he believed that at a minimum the system needed to be changed to take the decision on the size of defamation awards away from juries.

During a questions and answer session, Senator Michael McDowell, a barrister and former Attorney General, asked if consideration had been given to what the relationship between the media and the judiciary would be like if judges determined liability and damages in defamation cases.

He pointed to the "vicious reaction" by some UK newspapers towards judges who decided the British Government would need the permission of parliament to trigger Article 50 after the Brexit referendum.

Conference panellist Mr Justice Robert Jay, who hears defamation cases in England and Wales, said he didn’t think the relationship between the media and judges hearing such actions had been a problem since a move away from using juries in that jurisdiction a decade ago.

Leading defamation barrister Eoin McCullough SC said it was thought that juries provide a better representation of the public view on acceptable standards generally, particularly the meaning of words, but there was a less compelling argument for them to assess damages.

He pointed to the example of Australia where juries decide on the meaning of words published, but have no role in the assessment of damages.

Mr McCullough said he believed high awards in Ireland were linked to the relatively small amount of guidance given to juries by judges.

Mr Crowley said the decision-making process of a jury in a defamation action was not transparent, with no explanation on how a verdict is reached or the level of award assessed.

The high level of awards and related legal costs were jeopardising the financial viability of newspapers at a time of mounting challenges due to falling circulation and readership, and declining advertising revenue.

The impact of this, he said, has been important stories not being told for fear of litigation and a chilling effect on democracy and a free press.

Mr Crowley said there was an increased degree of pre-publication self-censorship, even when seeking to report on matters of major public interest.

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