Strasbourg on excessive libel damages

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.