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Jean-Yves Gilg

Editor, Solicitors Journal

Laws allowing 'unpredictably high' libel damages awards breach press freedom

Laws allowing 'unpredictably high' libel damages awards breach press freedom


Rules preventing judges from giving juries detailed directions breach article 10 ECHR, says Strasbourg court

Unreasonably high libel damages awards had a potentially chilling effect on press freedom, the European Court of Human Rights has ruled, upholding a claim by an Irish media group against the highest defamation award in the Republic of Ireland at the time.

In 2004 the Evening Herald published a series of articles about public relations consultant Monica Leech, reporting on rumours of an intimate relationship between her and a government minister.

Leech successfully sued the paper for defamation and a jury awarded her ‚¬1.87m in damages '“ reduced to ‚¬1.25m by the republic's Supreme Court on appeal.

The Herald's owner, Independent Newspaper, took its case to the ECtHR, saying the award was excessive and breached its right to freedom of expression.

The newspaper argued that the ban in Irish law on judges providing detailed guidance to juries in libel claims led to disproportionate awards.

'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,' the Strasbourg court said in Independent Newspaper (Ireland) Limited v Ireland.

The ECtHR made clear the issue was not about the principle of jury trials but 'the nature and extent of the directions to be given to the jury by the trial judge to guide it in its assessment of damages and protect against disproportionate awards'.

The judges also criticised the Supreme Court's own assessment of the award, saying it had failed to address the 'ineffectiveness' of the safeguard against excessive awards '“ the restrictions on the terms in which judges could direct juries.

'Further clarification was lacking regarding why, in particular, the highest ever award was required in a case which the Supreme Court did not categorise as one of the gravest and most serious libels,' they said.

Where an appellate court engaged in a fresh assessment of a claim, it should give 'relevant and sufficient reasons for the substituted award'.

Ireland is one of the few jurisdictions left where there is a right to a jury trial in defamation cases, but its laws prevent judges from suggesting an appropriate quantum, giving possible examples or comparisons, or altogether capping the award.

New rules introduced in the Defamation Act 2009 now allow judges to give 'directions' but it remains unclear whether they remain bound by precedent developed under the old law. A review of the act is currently underway.