Strasbourg on excessive libel damages

19 June 2017 by

Independent Newspapers (Ireland) Ltd v. Ireland     ECtHR, 5th section, 15 June 2017 – read judgment here

The Strasbourg Court has decided that an award of damages in an Irish libel case was disproportionate – but, as I shall explain – it has not told us what a proportionate award would have been.

This odd position was reached in an application by a newspaper group against the Irish state. It was triggered by a massive jury award (1.872m euros) for what by all accounts was a deeply unpleasant libellous campaign by the paper. But the immediate cause of the litigation arose from an appeal to the Irish Supreme Court, who, by a majority, would have reduced the award to 1.25m euros. 

In 2004, the paper ran 11 articles over 9 editions focussing on a PR consultant, Ms L. and the award of some Government contracts to her  There was a lot of strong nudge-wink about her connections with a Minister, Mr C, who was “separated from his wife.” She was “attractive” and a photoshop was done on a picture showing 4 people including Mr C and Ms. L, to bring Mr C and Ms L together in the image. Another photoshop modified an evening dress of hers to show a slit to the hip. Intent pretty obvious.

She sued, and the jury found that the articles, read as a whole, meant that she was having an extra-marital affair with Mr C. The sting was that she was using sex with Mr C to get lucrative PR contracts from the Government.

She adduced strong evidence of impact upon her of this campaign. She was married with teenage children, one of whom had to change school because of the brouhaha. She suffered abuse in her home town. The story went all over Ireland. A business venture of hers foundered because her business partner was warned off by the story. Her consultancy work for the Government had come to an end.

Very much in accordance with English practice some years ago, the judge was not allowed to direct the jury on ranges for damages, just as to the general things which they should bear in mind. The jury duly put the boot in to the paper with its award of nearly 1.9m euros – unreasoned, as of course jury awards are.

In the Supreme Court, two judges substituted their own figure of 1.25m euros, in the face of Ms L arguing that the matter ought to go back to a jury. Their ground for interfering was that the award was disproportionately high; damages ought to reflect a due balancing of the right of freedom of expression. The third judge agreed, sort of, but would have reduced the damages further to 1m euros.

The Irish law on libel damages had changed since these events (in the Defamation Act 2009), in that judges could now direct juries on damages, including the things which should be taken account of.

In Strasbourg

Breach of Art.10

The paper’s appeal was in familiar form, but powerfully put. Libel damages in Ireland were unpredictable, and hence chilling on news media and in breach of the right of freedom of expression under Art.10. They contrasted with the law of England and Wales in which there was an effective ceiling of about £275,000 in 2016 on defamation awards. They were out of sync with personal injury damages in Ireland, where maximum pain and suffering awards were in the order of 450,000 euros.

The Government gave as good as it got. The paper should have expected that a jury might award damages as high as this if it behaved in a reprehensible fashion. And as recently as 2009 the legislature had reaffirmed the role of the jury in libel cases. The paper had salaciously focussed on the (attractive) private person rather than Minister with whom it said she was having the affair. It had defended the case to the end (thus, in effect, spreading the poison) and had not apologised until after the trial. Genuine public-interest journalism was capable of defence under the law – but deterring this sort of journalism could only be a good thing.

The Court said that the Irish law of damages was still prescribed by law, despite its flexibility or unpredictability (choose your epithet according to taste). It paid lip-service to local standards, but said that the key question was whether the award was unusual by domestic standards.

The Court was critical of the inability of the judge at first instance (working entirely within the law as it stood) to give the jury meaningful guidance on the appropriate levels of damages.

It was also critical of the Supreme Court awarding damages far higher than had been awarded before, for a libel which was not the gravest to come before the courts. Despite couching things in proportionality terms, the Supreme Court had not explained how it came up with its reduced figures (watch this space when we see what Strasbourg did or did not do). Nor did it address the ineffectiveness of the supposed safeguard against excessive awards arising  from judicial guidance. As the Strasbourg Court put it at [104]

unpredictably high damages in libel cases are considered capable of having a chilling effect and they therefore require the most careful scrutiny and very strong justification. … a potential chilling effect on the Irish media cannot be regarded as devoid of any foundation. The effectiveness – or not – of the safeguard at first instance, the resulting unpredictability of the quantum of damages that is not solely a function of the unique facts of each case, the considerable expense and delay entailed by seeking appellate review and, where an award is set aside, a re-trial of the case, are all relevant considerations.

The Court finished  its consideration of breach by welcoming the new (2009) regime which enables judges to give more detailed guidance to the jury on damages.

Hence the Court concluded that there had been a breach of Art.10.

Comment

One oddity arises in the Strasbourg exercise of assessing damages (and its domestic counterpart). Understandably, the award looks intently at the impact on the claimant to decide on the gravity of the libel. But the argument of whether an award is chilling is pitched at a rather non-specific level – chilling in abstract rather chilling to this paper for this story,and at [85], the Court confirmed this approach.

But this seems to be weighting things in favour of the press, in that it makes easier and less embarrassing for the paper concerned. If a Court knew that, say, a paper had made 2m euros out of increased long-term circulation by some salacious story or stories, why would it be “chilling “to make them pay 1m euros to a claimant whom they had defamed? Indeed, if it knew that it made 30m euros in total last year, one might come to one conclusion, whereas if it made 300,000 euros, one might come to another. Put another way, third party papers asserted to the Court that defamation actions had cost Irish newspapers 30m euros since 2010. But what profits did they make overall? Was this relative small change or losses which truly threatened the viability of the press?

I appreciate all of this may be difficult to establish as a matter of fact, but it might make papers think twice about pronouncing the mantra of “chilling” if it turns out that they have still made a profit on the defamatory if not mendacious story.

Damage/just satisfaction

Now this is where the Court fudged it completely. Having decided that the award was disproportionate, you might have thought that the Court would award pecuniary loss assessed at the difference between the award as made and the award which should have been made consistent with proportionality- or, more precisely the highest award which would have been proportionate. That would put the paper into the position in which it would have been but for the interference – the supposed principle of ECtHR damages.

No, they ducked that, in an entirely formulaic way. They said it was not possible to speculate on the outcome of the proceedings had there been no violation of the Convention. So damages to the paper = nil under this head.

But the whole basis of their finding of breach was that the award was too high. That necessarily involves an assessment of what was not too high.

Big irony here. Strasbourg criticised the Irish Courts for not giving guidance on the appropriate levels of damages for libel which would not be chilling. And then it pointedly refused to give any guidance itself on the identical issue. It cannot, or should not, do both – “interfere” with local rulings and then disclaim all knowledge of what the local judges should have done if acting Convention-compliantly.

So all the paper recovered was a little over one-third of its legal costs of it taking the case to Strasbourg.

Postscript

The judgment is anonymised. But it takes but little effort to summons up the identity of the hapless Ms L from the internet. I hope photographs of her triumphant after the case continue to vindicate her position, rather than amounting to a reminder of tawdry journalism which affected her deeply.

Welcome to the UKHRB


This blog is run by 1 Crown Office Row barristers' chambers. Subscribe for free updates here. The blog's editorial team is:
Commissioning Editor: Jonathan Metzer
Editorial Team: Rosalind English
Angus McCullough QC David Hart QC
Martin Downs
Jim Duffy

Free email updates


Enter your email address to subscribe to this blog for free and receive weekly notifications of new posts by email.

Subscribe

Categories


Tags


7/7 Bombings 9/11 A1P1 Aarhus Abortion Abu Qatada Abuse Access to justice adoption AI air pollution air travel ALBA Allergy Al Qaeda Amnesty International animal rights Animals anonymity Article 1 Protocol 1 Article 2 article 3 Article 4 article 5 Article 6 Article 8 Article 9 article 10 Article 11 article 13 Article 14 article 263 TFEU Artificial Intelligence Asbestos Assange assisted suicide asylum asylum seekers Australia autism badgers benefits Bill of Rights biotechnology birds directive blogging Bloody Sunday brexit Bribery British Waterways Board Catholic Church Catholicism Chagos Islanders Charter of Fundamental Rights child protection Children children's rights China christianity circumcision citizenship civil liberties campaigners civil partnerships climate change clinical negligence closed material procedure Coercion Cologne Commission on a Bill of Rights common buzzard common law communications competition confidentiality confiscation order conscientious objection consent conservation constitution contact order contempt of court Control orders Copyright coronavirus costs costs budgets Court of Protection crime criminal law Criminal Legal Aid criminal records Cybersecurity Damages data protection death penalty declaration of incompatibility defamation deficit DEFRA Democracy village Dennis Gill dentist's registration fees deportation deprivation of liberty derogations Detention devolution Dignitas dignity Dignity in Dying diplomacy director of public prosecutions disability Disability-related harassment disabled claimants disciplinary hearing disclosure Discrimination Discrimination law disease divorce DNA doctors does it matter? domestic violence Dominic Grieve don't ask don't ask don't tell don't tell Doogan and Wood double conviction DPP guidelines drones duty of care ECHR economic and social rights economic loss ECtHR Education election Employment Environment environmental information Equality Act Equality Act 2010 ethics Ethiopia EU EU Charter of Fundamental Rights EU costs EU law European Convention on Human Rights European Court of Human Rights European Court of Justice european disability forum European Sanctions Blog Eurozone euthanasia evidence Exclusion extra-jurisdictional reach of ECHR extra-territoriality extradition extradition act extradition procedures extradition review extraordinary rendition Facebook Facebook contempt facial recognition fair procedures Fair Trial faith courts fake news Family family courts family law family legal aid Family life fatal accidents act Fertility fertility treatment FGM fisheries fishing rights foreign criminals foreign office foreign policy France freedom of assembly Freedom of Association Freedom of Expression freedom of information Freedom of Information Act 2000 freedom of movement freedom of speech free speech game birds gangbo gang injunctions Garry Mann gary dobson Gary McFarlane gay discrimination Gay marriage gay rights gay soldiers Gaza Gaza conflict Gender General Dental Council General Election General Medical Council genetic discrimination genetic engineering genetic information genetics genetic testing Google government Grenfell grooming Gun Control gwyneth paltrow gypsies habitats habitats protection Halsbury's Law Exchange hammerton v uk happy new year harassment Hardeep Singh Haringey Council Harkins and Edwards Health healthcare health insurance Heathrow heist heightened scrutiny Henry VII Henry VIII herd immunity hereditary disorder High Court of Justiciary Hirst v UK HIV HJ Iran HM (Iraq) v The Secretary of state for the home department [2010] EWCA Civ 1322 Holder holkham beach holocaust homelessness Home Office Home Office v Tariq homeopathy hooding Hounslow v Powell House of Commons Housing housing benefits Howard League for Penal Reform how judges decide cases hra damages claim Hrant Dink HRLA HS2 hs2 challenge hts http://ukhumanrightsblog.com/2011/04/11/us-state-department-reports-on-uk-human-rights/ Human Fertilisation and Embryology Act Human Fertilisation and Embryology Authority human genome human rights Human Rights Act Human Rights Act 1998 human rights advocacy Human rights and the UK constitution human rights commission human rights conventions human rights damages Human Rights Day human rights decisions Human Rights Information Project human rights news Human Rights Watch human right to education human trafficking hunting Huntington's Disease HXA hyper injunctions Igor Sutyagin illegality defence immigration Immigration/Extradition Immigration Act 2014 immigration appeals immigration detention immigration judge immigration rules immunity increase of sanction India Indonesia Infrastructure Planning Committee inherent jurisdiction inherited disease Inhuman and degrading treatment injunction Inquest Inquests insult insurance insurmountable obstacles intelligence services act intercept evidence interception interests of the child interim remedies international international conflict international criminal court international humanitarian law international human rights international human rights law international law international treaty obligations internet internet service providers internment internship inuit investigation investigative duty in vitro fertilisation Iran iranian bank sanctions Iranian nuclear program Iraq Iraqi asylum seeker Iraq War Ireland irrationality islam Israel Italy iTunes IVF ivory ban jackson reforms Janowiec and Others v Russia ( Japan Jason Smith Jeet Singh Jefferies Jeremy Corbyn jeremy hunt job Jogee John Hemming John Terry joint enterprise joint tenancy Jon Guant Joseph v Spiller journalism judaism judges Judges and Juries judging Judicial activism judicial brevity judicial deference judicial review Judicial Review reform judiciary Julian Assange jurisdiction jury trial JUSTICE Justice and Security Act Justice and Security Bill Justice and Security Green Paper Justice Human Rights Awards JUSTICE Human Rights Awards 2010 justification just satisfaction Katyn Massacre Kay v Lambeth Kay v UK Ken Clarke Ken Pease Kerry McCarthy Kettling Kings College Klimas koran burning Labour Lady Hale lansley NHS reforms LASPO Law Commission Law Pod UK Law Society Law Society of Scotland leave to enter leave to remain legal aid legal aid cuts Legal Aid desert Legal Aid Reforms legal blogs Legal Certainty legal naughty step Legal Ombudsman legal representation legitimate expectation let as a dwelling Leveson Inquiry Levi Bellfield lewisham hospital closure lgbtq liability Libel libel reform Liberal Democrat Conference Liberty libraries closure library closures Libya licence conditions licence to shoot life insurance life sentence life support limestone pavements limitation lisbon treaty Lithuania Litigation litvinenko live exports local authorities locked in syndrome london borough of merton London Legal Walk London Probation Trust Lord Bingham Lord Bingham of Cornhill Lord Blair Lord Goldsmith lord irvine Lord Judge speech Lord Kerr Lord Lester Lord Neuberger Lord Phillips Lord Rodger Lord Sumption Lord Taylor LSC tender luftur rahman machine learning MAGA Magna Carta mail on sunday Majority Verdict Malcolm Kennedy malice Margaret Thatcher Margin of Appreciation margin of discretion Maria Gallastegui marriage material support maternity pay Matthew Woods Mattu v The University Hospitals of Coventry and Warwickshire NHS Trust [2011] EWHC 2068 (QB) Maya the Cat Mba v London Borough Of Merton McKenzie friend Media and Censorship Medical medical liability medical negligence medical qualifications medical records medicine mental capacity Mental Capacity Act Mental Capacity Act 2005 Mental Health mental health act mental health advocacy mental health awareness Mental Health Courts Mental illness merits review MGN v UK michael gove Midwives migrant crisis Milly Dowler Ministerial Code Ministry of Justice Ministry of Justice cuts misfeasance in public office modern slavery morality morocco mortuaries motherhood Motor Neurone disease Moulton Mousa MP expenses Mr Gul Mr Justice Eady MS (Palestinian Territories) (FC) (Appellant) v Secretary of State for the Home Department murder murder reform Musician's Union Muslim NADA v. SWITZERLAND - 10593/08 - HEJUD [2012] ECHR 1691 naked rambler Naomi Campbell nationality National Pro Bono Week national security Natural England nature conservation naturism Nazi negligence Neuberger neuroscience Newcastle university news News of the World new Supreme Court President NHS NHS Risk Register Nick Clegg Nicklinson Niqaab Noise Regulations 2005 Northern Ireland nuclear challenges nuisance nursing nursing home Obituary Occupy London offensive jokes Offensive Speech offensive t shirt oil spill olympics open justice oppress OPQ v BJM orchestra Osama Bin Laden Oxford University paramountcy principle parental rights parenthood parking spaces parliamentary expenses parliamentary expenses scandal Parliamentary sovereignty Parliament square parole board passive smoking pastor Terry Jones patents Pathway Students Patrick Quinn murder Pensions persecution personal data Personal Injury personality rights perversity Peter and Hazelmary Bull PF and EF v UK Phil Woolas phone hacking phone taps physical and mental disabilities physician assisted death Pinnock Piracy Plagiarism planning planning human rights planning system plebgate POCA podcast points Poland Police police investigations police liability police misconduct police powers police surveillance Policy Exchange report political judges Politics Politics/Public Order poor reporting Pope Pope's visit Pope Benedict portal possession proceedings power of attorney PoW letters to ministers pre-nup pre-nuptial Pre-trial detention predator control pregnancy press press briefing press freedom Prince Charles prince of wales princess caroline of monaco principle of subsidiarity prior restraint prison Prisoners prisoners rights prisoners voting prisoner vote prisoner votes prisoner voting prison numbers Prisons prison vote privacy privacy injunction privacy law through the front door Private life private nuisance private use proceeds of crime Professional Discipline Property proportionality prosecution Protection of Freedoms Act Protection of Freedoms Bill Protest protest camp protest rights Protocol 15 psychiatric hospitals Public/Private public access publication public authorities Public Bodies Bill public inquiries public interest public interest environmental litigation public interest immunity Public Order Public Sector Equality Duty putting the past behind quango quantum quarantine Queen's Speech queer in the 21st century R (on the application of) v Secretary of State for the Home Department & Ors [2011] EWCA Civ 895 R (on the application of) v The General Medical Council [2013] EWHC 2839 (Admin) R (on the application of EH) v Secretary of State for the Home Department [2012] EWHC 2569 (Admin) R (on the application of G) v The Governors of X School Rabone and another v Pennine Care NHS Foundation Trust [2012] UKSC 2 race relations Rachel Corrie Radmacher Raed Salah Mahajna Raed Saleh Ramsgate raptors rehabilitation Reith Lectures Religion resuscitation RightsInfo right to die right to family life right to life Right to Privacy right to swim riots Roma Romania Round Up Royals Russia saudi arabia Scotland secrecy secret justice Secret trials security services sexual offence Sikhism Smoking social media social workers South Africa south african constitution Spain special advocates spending cuts Standing starvation statelessness stem cells stop and search Strasbourg super injunctions Supreme Court Supreme Court of Canada surrogacy surveillance swine flu Syria Tax Taxi technology Terrorism terrorism act tort Torture travel treason treaty accession trial by jury TTIP Turkey Twitter UK Ukraine unfair consultation universal jurisdiction unlawful detention USA US Supreme Court vaccination vicarious liability Wales War Crimes Wars Welfare Western Sahara Whistleblowing Wikileaks wildlife wind farms WomenInLaw Worboys wrongful birth YearInReview Zimbabwe

Disclaimer


This blog is maintained for information purposes only. It is not intended to be a source of legal advice and must not be relied upon as such. Blog posts reflect the views and opinions of their individual authors, not of chambers as a whole.

Our privacy policy can be found on our ‘subscribe’ page or by clicking here.

%d bloggers like this: