What’s in this article: The amount that media outlets in Ireland are forced to pay in defamation cases is far above the European average and continues to spiral, despite reform attempts. In this in-depth piece, part of IPI’s ongoing coverage of libel laws and freedom of expression in Europe, we take a look at what’s contributing to the rise, how Irish media are feeling the pressure and what solutions are in sight.
How much is a good name worth? If you happen to live in Ireland, the answer is millions – and gaining in value rapidly.
In 1999, the Irish Supreme Court upheld a jury verdict ordering a newspaper to pay 300,000 Irish pounds (€380,000 at the fixed exchange rate) in libel damages to a prominent left-wing politician.
According to the jury, the newspaper, the Sunday Independent, had falsely suggested that Democratic Left party leader Proinsias De Rossa had “been involved in or tolerated serious crime and that he had personally supported anti-semitism and violent communist oppression”.
The compensation awarded – the highest ever upheld by an Irish appeals court in a libel case at the time – was denounced by media groups as “excessive and disproportionate” and a threat to free speech.
A large sum, indeed, the Supreme Court agreed.
But it noted: “But the libel was serious and grave … and the jury would have been justified in going to the top of the bracket.”
Yet while €380,000 may have been “top of the bracket” in 1999, in 2016 it’s positively quaint.
In a controversial ruling in December 2014, the Supreme Court surprised legal observers by awarding €1.25 million to a communications consultant, Monica Leech, who was alleged in the press to have performed sexual favours in return for government contracts.
The Court justified the unprecedented sum – somewhat less than the record €1.875 million the jury in the case originally awarded – in part by citing the “profound impact” of the allegations on Leech’s personal and professional life. Yet it went on to conclude that the case could not be considered among the most serious to come before the Irish courts. It then described the De Rossa case as a more serious example – despite having awarded Leech more than three times as much as De Rossa.
While unexpected, the Leech ruling nevertheless fits a pattern of runaway libel awards that increasingly dwarf those found in other EU countries and that Irish lawyers and journalists interviewed by the International Press Institute (IPI) say pose a serious threat to press freedom and investigative journalism. According to experts, the Leech decision in particular, has also dealt a serious setback to reform efforts.
Aware of the potential for even simple errors to trigger six-figure payouts and faced with the prospect of wildly unpredictable court trials, Irish media houses are forced to rely on a careful risk calculus to avoid financial ruin. The resulting picture is a watchdog media under pressure.
Last year, NewsBrands Ireland, which represents the country’s newspaper industry and which has made defamation reform an advocacy priority, warned that spiralling damage awards “threaten the very existence of media organisations”. It estimated that libel actions have cost Irish newspapers €30 million since 2010 alone.
Michael Kealey, in-house counsel for Associated Newspapers, which publishes the Irish Daily Mail and the Mail on Sunday, told IPI the group’s call was not hyperbole.
“€2 million is enough to close a number of newspapers,” he said. “You are looking at the potential of closure for one defamation case. Unsurprisingly, as a consequence, the press have become terribly risk averse, and that impacts not just on traditional investigative journalism but across the board.”
While concerns about Ireland’s defamation regime have become louder in the wake of the Leech decision, they are far from new. Led by the newspaper industry, efforts to control libel damages go back until at least the 1980s. It was not until 2009, however, that media groups could claim a major victory.
That year, Irish legislators passed the Defamation Act 2009, which, among other things, sought to rein in excessive awards by tackling one of the most problematic aspects of defamation trials: the jury.
Allowing juries to decide defamation cases is rare in other European jurisdictions, including the UK. But it remains the norm in Ireland. Prior to the 2009 reforms, juries, in addition to ruling on liability, had virtually unlimited leeway in granting compensation to persons who had been defamed. Judges and attorneys were barred from providing guidance in terms of what could be considered reasonable and appropriate.
As a result, “juries with no guidance were choosing numbers from American TV shows or international dialling codes with 11 digits,” Eoin O’Dell, associate professor of law at Trinity College Dublin and a member of the commission that advised on the Defamation Act 2009, says.
He explains: “The aim since the mid-1980s has been to find ways to reduce jury awards. And the whole point of the reform on the issue of damages was to give juries proper guidance.”
The new law requires judges to give juries “direction” in assessing damages and lists circumstances courts must take into account. It also allows lawyers for both sides to make their own submissions to the jury. Moreover, it expressly permits the Supreme Court to substitute disproportionate jury awards with a more “appropriate” amount (the Court’s previous practice had been to set aside such awards and order a new trial, which in some cases had resulted in damages multiple times higher than the original).
Six years later, the jury is still out – so to speak – on the Defamation Act 2009, in large part because relatively few cases have been tried under the new rules. This paucity of examples is said to reflect continued mistrust on the part of media houses to put their fate in the hands of juries.
“Newspapers will almost always settle out of court even if they believe the article was not defamatory because the risk of the damages award and particularly the two sets of costs is unacceptable,” Eoin McVey, former managing editor of The Irish Times and now Readers’ Representative at the paper, notes, referring to the dual financial burden of damages and legal fees.
The new rules were meant to address the imbalances in court and moderate what many see as the pro-plaintiff bent of jury trials. Instead, the rug appears to have been pulled out from under these rules.
“There are a lot of good things in the Act, but a lot of that has been nullified by the Leech decision,” Kealey argues.
Giving juries guidance was supposed to prevent excessive compensation; now, experts fear, it may wind up fostering it. Should a case go to trial, juries will be told that €1.25 million is the benchmark for serious, but not that serious, libel.
The Leech ruling “has resulted in people not fighting actions, but rather settling them because a jury could go mad and there is no rein on them from the appeal court,” one prominent defence lawyer who requested anonymity, says.
Even in settlement negotiations, the lawyer comments, “the impact is extraordinary”, explaining: “Cases that are acknowledgably serious are not being settled for less than €500,000 to €750,000.”
Ten years ago, those would have been near-record figures in a jury trial.
Alarmingly, there is still plenty of room to grow. The highest-ever libel award in Ireland came in 2010, when a jury awarded a businessman €10 million in damages after his former employer, the mining company Kenmare Resources, defamed him in a press release.
That case remains under appeal.
Out of balance
Critics of Ireland’s libel regime frequently point out that damage levels now far outstrip those in the UK. In England and Wales, the well-regarded Defamation Act 2013 established a “serious harm” principle to prevent frivolous claims from reaching court and abolished the presumption of a jury trial, steps considered to minimise the risk of excessive compensation.
But the differences with other European Union member states are even more striking, according to IPI research.
In the Netherlands, libel damages average between €1,000 and €5,000. Plaintiffs in Sweden can expect no more than €15,000 (if the case even makes it past the country’s rigorous self-regulatory system). Austria caps libel damages for pain and suffering at €50,000 in the most egregious cases. The highest award ever upheld by the Portuguese Supreme Court is €75,000, a sum the European Court of Human Rights later deemed disproportionate to typical levels of compensation in the country.
The geographical comparison is not the only red flag. Ireland’s libel judgments also appear out of whack in relation to other types of compensation awarded in the Irish courts, especially for personal injury.
The Irish Supreme Court has observed a soft cap on damages for emotional pain and suffering stemming from personal injury of around €450,000, which it reserves only for catastrophic cases. (In one case, the Court threw out a jury award of €600,000 to a victim of multiple years of sexual abuse and rape as “disproportionate”. It settled on €350,000 as a more appropriate figure.)
But judges have repeatedly refused to draw a parallel between personal injury and defamation cases, with some citing what they view as fundamental differences in the purpose of providing compensation. As a result, a paraplegia sufferer can expect to receive only a fraction of what a plaintiff in a defamation case might get in terms of non-pecuniary damage – something several Irish legal experts interviewed by IPI say “defies logic”.
Recent libel cases also raise the question of whether Irish courts sufficiently take into account freedom of expression or grapple with the practical implications of their rulings.
In Leech, the Supreme Court acknowledged that “[a]n award of damages must be fair to the plaintiff and to the defendant” and noted the need for proportionality. In tipping the scales toward the plaintiff, the Court emphasised the unquestionable gravity of the case against the Evening Herald, the plaintiff newspaper, which among other things was found to have “cropped and manipulated” photographs to support its insinuations about Leech.
When it comes to the monetary amount itself, however, the Court’s ruling does not attempt to situate this balancing act in context. It is not made clear which concrete factors are taken into account to determine whether or not a specific award violates a newspaper’s freedom of expression or casts a chilling effect on press freedom more broadly. The possibility that such an award could force the closure of a media outlet, for instance, is not mentioned.
In another recent case, the Irish High Court in November 2015 ordered private broadcaster TV3 to pay €140,000 in damages to a well-known solicitor whom it mistakenly identified as a different solicitor on trial for fraud in a nine-second clip. The award was made despite the fact that TV3 issued an on-air apology for “any distress and embarrassment caused” two days after the incident.
Unusually for Ireland, the case was heard without a jury. The judge in the case wrote that he was inclined to award the solicitor €200,000, but opted to give the TV3 a “discount” in view of the station’s apology.
The ruling – one of the few issued under the Defamation Act 2009 – does not assess the case from the angle of freedom of expression to any significant degree, referring to the concept just twice, in passing. Nor does it contemplate the proportionality of ordering a media outlet to pay a six-figure sum for a mistake it made without malice and quickly corrected.
John Maher, former news editor at The Irish Times and now a barrister specialising in media law, singles out the TV3 case as having “certainly given all news publishers pause for thought, simply because all human endeavour carries with it the potential for error”.
He adds: “It is of course appropriate that a major error would attract significant damages, but today even a minor error is capable of resulting in a significant award.”
Irish editors suggest the potential for excessive damages directly impacts the newsroom in the form of a constant risk calculus, even for stories considered factually watertight.
“There is sometimes the temptation to spike a story not because it isn’t right, but because the large awards here have emboldened many complainants to engage you in a round of costly legal letters, simply because they believe there may be some compensation in it,” Susan Daly, editor of the online news site TheJournal.ie, notes.
Daly says her site’s articles frequently undergo extensive legal review prior to publication out of an abundance of caution, particularly when the content touches on “highly litigious” individuals.
“That might not be a bad thing in some circumstances,” she acknowledges. “But – assuming that you are acting as a responsible and accurate media publication – it can be a huge obstacle to putting out stories that are of public interest in a timely fashion.”
McVey describes a similar situation at The Irish Times: “The awareness of the risk means that many stories are re-written at the direction of the newsdesk and are read by our solicitors pre-publication. Re-writes and solicitors’ involvement impacts on the time it can take to get stories up on the online edition.”
On top of it all, he comments, “there is also the awareness that a bad mistake could result in a very large award”.
It’s the numbers that count
Legal observers say that the high number of libel suits in Ireland is partly a reflection of a culture that takes a more balanced approach to free expression in comparison to the American First Amendment tradition or the free-wheeling English model.
“People in Ireland are very aware of their rights,” Karyn Harty, an attorney who specialises in media defence, explains. “And access to justice is an important constitutional principle here.”
She adds that Ireland’s “no foal no fee system”, under which attorneys collect a fee from clients only if they win the case, makes it “easier to secure legal representation than in other jurisdictions”.
But Harty and other experts also say that the steady rise in damage awards is further increasing the public’s expectations in terms of filing and winning libel suits against the press.
These expectations can quickly put media houses on the back foot. Court documents in the TV3 case, for example, show that attorneys for the erroneously identified solicitor demanded proposals for “substantial compensation” shortly after the clip aired, regardless of any apology. When TV3 offered instead to make a €1,000 donation to charity, the attorneys blasted the station for “belittling” their client and trivialising its “outrageous behaviour”. Likewise, an offer of amends of an undisclosed value was later rejected as “derisory”.
Irish law provides victims of defamation with alternative methods of resolving disputes, including through means less likely to cause a chilling effect on the press. With the introduction of the Defamation Act 2009, victims can now sue for a correction and/or declaratory order that the content in question was false and defamatory. In addition, the Press Council of Ireland, whose members include all daily newspapers as well as many magazines and online news sites, can hear complaints related to violations of its media code of practice.
These methods, O’Dell says, haven’t proven popular with plaintiffs. “As long as damages remain high, I think public plaintiffs will see it as appropriate to seek a damages award,” he comments, adding: “It’s the big number in the headlines that is socially understood to be the real vindication.”
Peter Feeney, the Press Council’s ombudsman, told IPI he regretted that more plaintiffs did not turn to the Council for assistance in resolving libel disputes. According to the Council’s statistics, complaints lodged under the category “respect for rights”, which includes the protection of one’s good name, comprised just 4.2 percent of the total in 2015.
Libel damages and media pluralism
Complicating matters is the fact that, despite the danger for press freedom, Irish politicians have traditionally shown little appetite for reining in libel awards. Cynics point out that plaintiff-friendly libel laws can serve as a convenient tool for MPs and other officials to strike back against unflattering media coverage.
Others attribute this reluctance at least in part to long-held concerns about the power of the tabloid press in one of Europe’s most concentrated media markets. Strong libel laws, goes the theory, can act as a bulwark against abuses by too-powerful media owners.
Recent experience, however, suggests this may be a misplaced strategy.
Squarely at the centre of concerns over ownership concentration is controversial billionaire Denis O’Brien, by far Ireland’s single largest private media owner by virtue of his minority stake in Independent News and Media. He is also the principal shareholder of the company behind the country’s two largest commercial radio stations.
Notably, O’Brien also happens to be one of Ireland’s most prolific libel plaintiffs.
A 2016 investigation by the Irish Times found that O’Brien had launched 21 legal actions since 2010, of which more than half were directed against media outlets for their coverage of O’Brien’s business and tax dealings. A number of these suits are for defamation, including a €150,000 judgment against the Irish Daily Mail in 2013. Other outlets targeted by O’Brien have included The Irish Times, the public broadcaster RTÉ and a satirical website called Waterford Whispers.
An independent report released in October 2016 examining the concentration of media ownership in Ireland specifically highlighted the role that Ireland’s unpredictable and “very high” jury awards play in protecting the top players in Ireland’s media market.
The report concluded: “[T]he combination of the highly concentrated media market, Mr. O’Brien’s threatening and initiation of a large number of legal proceedings against the media and other critics, and serious shortcomings in the defamation framework create a perfect storm which threatens news plurality and undermines the media’s ability to perform its watchdog function.”
The way forward
While Irish legal experts agree on the need for damages to be brought down, most say the path forward remains unclear for the time being.
Although O’Dell and others believe that the Defamation Act 2009 will eventually temper damages once it is given more time to work, the Supreme Court’s Leech decision is viewed as having set progress back significantly
Additional suggestions for tempering excess compensation include linking libel damages to personal injury damages, requiring the jury to decide separately on liability and damages and getting rid of jury trials in libel cases completely, although the latter is thought to be extremely unlikely. Capping awards outright, as has been done in Australia, has never been seriously considered in Ireland.
All of these proposed solutions, however, require judicial or legislative action, with the latter seen as the more likely possibility, despite the reservations noted above. Indeed, there are signs that pressure from media groups may be starting to have an effect: in November, Irish Justice Minister Frances Fitzgerald announced a review of the Defamation Act 2009, beginning with a public consultation period that ended on Dec. 31, 2016.
“We want to ensure that our journalists, commentators and news media can exercise their vital role in a democratic society, to report, investigate and challenge, independently and vigorously, in the public interest,” Fitzgerald explained.
NewsBrands Ireland, the National Union of Journalists and the Press Council have welcomed the review, as has Independent News and Media (INM), the publishing group against which the Leech judgment was issued. INM has also appealed the Supreme Court’s ruling to the European Court of Human Rights in Strasbourg, a move that other newspapers support.
“One fundamental way to protect the vibrancy of the press is to bring our defamation laws, particularly with regard to the size of damage awards, into line with the rest of the European Union.” INM Group Managing Editor Edward McCann told IPI. “That is why INM has made a forceful submission to the Defamation Act review and also is pursuing a case at the European Court of Human Rights.”
Whether the review will lead to a much-needed amelioration remains to be seen. What is certain is that, in the meantime, Ireland’s media outlets will continue to balance the reward of an important scoop with the risk of a very expensive day in court.
*This article was updated on Jan. 11, 2017 to add comments by INM Group Managing Editor Edward McCann.