The European Court of Human Rights (ECtHR) has found Irish law on damages for defamation not compatible with the right to freedom of expression under Article 10 of the European Convention on Human Rights (ECHR).
In 2009, public relations consultant Monica Leech was awarded €1.25 million in a libel action she took against Independent Newspapers over a series of articles published in the Evening Herald. Ms Leech was initially awarded €1.87m but the amount was reduced to €1.25m following an appeal in the Supreme Court. Independent Newspapers complained to the ECtHR that the award had been excessive and violated its right to freedom of expression.
The Court held that the unpredictability of the domestic system meant that there was a strong and continuous chilling effect on the news media in Ireland, hindering them in reporting on matters of legitimate public concern. They had to face the uncertainty of potentially enormous damages in defamation. It felt that in a country the size of Ireland, with relatively small press companies, awards on the scale seen in this case could threaten the financial existence of companies, to the detriment of freedom of speech and the vibrancy of democracy. The uncertainty was aggravated by the fact that in Irish defamation law the jury decided on the meaning of the impugned words, independently of the meaning intended by the publisher.
The Court stressed that jury trials are an entirely legitimate way to assess defamation cases, and that it was not the Court’s task to call into question that legislative choice or take the place of the national court. Rather, the issues were the nature and extent of the directions given to juries to protect against disproportionate awards, and, in the event that an appellate court engages in a fresh assessment, the need for relevant and sufficient reasons for the substituted award.
The Court found that the safeguards had not proved effective in this case. At first instance, this was because domestic law prevented the judge from giving the jury sufficiently specific instructions about an appropriate amount of damages for the libel. On appeal, although the award had been overturned and replaced with a lower amount after a fresh assessment, the stated that Supreme Court had not given sufficient explanations as to how the new amount had been calculated, and it had not addressed the domestic safeguard at first instance and, in that context, the strict limits on judicial guidance to juries.
The Court also recognised that the proceedings in question had been conducted under a legal regime that has since changed with the adoption of the Defamation Act 2009. It welcomed the comments of the majority of the Supreme Court in this case, which noted that under the new legislation it is now possible for the trial judge to give more detailed instructions to a jury as to the assessment of damages.
Finally, the Court ruled the State must pay €20,000 to Independent Newspapers for costs and expenses related to the case.
Click here for the judgement in Independent Newspapers (Ireland) Ltd v. Ireland.