15 June 2017
Today, the European Court of Human Rights issued its judgment in Independent Newspapers v Ireland, where the newspaper group had argued that Irish law on damages for defamation was not compatible with their rights to freedom of expression under the European Convention on Human Rights.
Responding to the Court’s judgment, the Minister for Justice and Equality, Charlie Flanagan T.D., said: “It is important to bear in mind that, while the European Court of Human Rights has found in essence a procedural breach by Ireland of the Convention on the facts in this case, its judgment underlines that the case refers to Irish law as it stood before our law was changed in 2009. The Court upholds the choice of the use of juries to decide on damages in defamation cases, as fully compatible with the Convention. It finds that the judge should give directions to the jury to guide it in its assessment of damages and protect against disproportionate awards, and that an appeal court which is substituting a different amount for the jury award should give relevant and detailed reasons for the amount awarded, particularly when the award is a very large one.
The judgment expressly notes and welcomes the fact that Irish law was subsequently changed, by section 31 of the Defamation Act 2009, which introduced a new provision for the High Court judge to give directions to the jury to guide it in assessing an appropriate amount of damages.
The judgment is nevertheless, of course, a significant one, in light of the review of the Defamation Act 2009, and its operation in practice, which is currently under way in my Department. I and my officials are studying it carefully, and it will be taken fully into account in the review.
The review was launched last November with the aim of assessing whether the policy objectives of the Defamation Act 2009 remain valid, and whether the provisions of the Act remain appropriate for securing those objectives. From the outset, the central focus of our review has been to ensure that our law strikes the correct balance between the right to freedom of expression in a democratic society, and an individual’s right to protect their good name and privacy against unfounded attack – rights which are protected both under our Constitution and under the European Convention on Human Rights.”
Notes for Editors
The judgment published today by the European Court of Human Rights (Independent Newspapers (Ireland) Ltd v Ireland, Application 28199/15), refers to a challenge to Irish defamation law lodged in May 2015 by the Irish newspaper group. The challenge arises from an award of damages made, under the Defamation Act 1961, by a High Court jury in June 2009, and reduced by the Supreme Court on appeal in December 2014. The newspaper group argued that Irish defamation law (as it applied in that case) was in breach of newspapers' rights to freedom of expression under Article 10 of the European Convention on Human Rights. It claimed that Irish law allowed juries (and, on appeal, the courts) to make disproportionately large and unpredictable awards to plaintiffs in defamation cases, and that the risk of such awards creates a 'chilling' effect on press freedom.
The challenge was based on the Leech v Independent Newspapers case, in which a High Court jury awarded a PR consultant damages of €1.8 million against the newspaper group, for publishing a series of untrue and defamatory articles about her in 2004. Both the High Court, and the Supreme Court on appeal, held that the defamation was a very serious one, which had caused the plaintiff considerable personal hurt and stress, had impacted on her family, and had a real and long lasting impact on her professional life: and that there had been aggravating factors in the nature of the publication. The Supreme Court noted, however, that the High Court award had been exceptionally high, while the defamation did not fall into the category of most serious possible libels. It reduced the award of damages to €1.25 million.
The Leech case was brought and decided under the Defamation Act 1961, which was reformed by the Defamation Act 2009. The 2009 Act extended the Circuit Court’s jurisdiction to decide defamation cases (without a jury). It retains juries for High Court defamation cases, but section 31 of the 2009 Act requires the judge to give directions to the jury in relation to damages, and sets out a range of issues to be taken into account.
The Defamation Act 2009 provides for a statutory review of its operation after 5 years. That review, including a public consultation, was launched by the Department of Justice and Equality on 1 November 2016, and is due to be completed in autumn 2017.
The judgment published this morning, by a seven-judge Chamber of the European Court of Human Rights in Strasbourg, holds that Irish defamation law was pursuing the legitimate aim of protecting the individual’s reputation and her right to private and family life. It accepted the Irish courts’ findings regarding the gravity of the defamation in this case, which it described as ‘a sustained and unusually salacious campaign’. However, the Court held that the procedural safeguards then in place did not sufficiently protect against the risk of an excessive or disproportionate award of damages by a jury, and the Supreme Court judgment did not sufficiently explain its reasoning for the large amount of damages it substituted for the jury award. The Court noted that unpredictably large awards of damages in defamation cases are considered capable, in principle, of having a chilling effect on media’s right to freedom of expression under Article 10 of the Convention, and therefore require particularly careful scrutiny.
No decision has been taken at this point on whether to seek a referral of this judgment to the Grand Chamber of the European Court of Human Rights. Within three months from the date of a Chamber judgment, any party to the case may ask for it be referred to the Grand Chamber. As with any judgment of the ECHR, this possibility will be considered over the coming days.
The Court’s judgment does not affect the award already made to the plaintiff in the Irish defamation proceedings. The Court declined to award damages to Independent Newspapers, and directed the Government to pay an amount of 20,000 euro towards their legal costs and expenses.