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23.10.2017

Ireland: 'sex scandal' libel case causes chilling effect

by Emil Weber

The decision by the Irish courts to issue the highest-ever defamation award against a major newspaper publisher was disproportionate and amounted to chilling effect on the press, a recent judgment of the European Court of Human Rights (ECtHR) said. 

Ireland sex scandal libel case causes chilling effect kieranlynam, Four Courts, Dublin, Ireland, CC BY 2.0

The Evening Herald, which later changed its name to Herald, in 2004 serialised a story running through nine editions regarding a public relations consultant hired by the government. According to the series, the consultant was a supporter, came from the same city, and was acquainted with a major politician. She was hired twice in departments where the politician acted as a minister. The story questioned the hiring procedure, the work, and the compensation of the consultant. She was married with two children; the politician was divorced. The series referred to rumours of an affair between the consultant and the minister including during an official trip to New York. It was accompanied by montage photos signifying intimate relations, and became a major news story. “At the end of that period (series), she had gone from a person who would not have been known to the general public at all to someone who was notorious”, the court said.

 Record damages plus costs totalling 1.8 million Euros

The consultant lodged a defamation application at the High Court which, in 2009, ruled that the “newspaper had alleged an extra-marital affair” between the consultant and the politician and ordered the publisher - The Independent Newspapers (Ireland) Limited to pay 1,872,000 Euros in damages, in addition to the costs of the proceedings. The newspaper published an apology to the consultant, and it appealed only against the amount of the damages. The Supreme Court set aside the appeal and gave a ruling in late December 2014. The judges argued that the first instance award “was excessive” and eventually the majority voted to reduce it to 1,250,000 Euros. The publisher paid the damages and an additional 240,448.16 Euros in costs.

The European Court of Human Rights, following the publisher’s complaint, questioned the award while not contesting the domestic courts’ findings that the series was defamatory. It ruled on June 15, 2017, that the assessed damages were disproportionate being higher than any other previous award in the country. It said that such large awards are in principle considered to have chilling effect on the press.

The ECtHR emphasised that the trial judge at the first instance court “did not provide concrete indications” to the jury towards setting a proportionate award as had happened in another similar case (Tolstoy Miloslavsky and Independent News and Media). Although the domestic legislation does not require specific guidance to the juries, the court argued that comparisons with other awards as noted by the Supreme Court “could have some merit”.

The top European court said that the appellate court later took an exceptional decision to itself substitute the award which eventually was “higher than any award ever made […] far in excess of amounts […] previously approved”. However, according to the ECtHR, the Supreme Court did not explain “how it arrived at the figure of EUR 1.25 million” even though at appellate level it was supposed to provide reasons that“reduce uncertainty to the extent possible”.  

"Clarification was lacking"

“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”, the judgement reads. “[…] that award had the capacity to act as a benchmark for future defamation awards and out-of-court settlements”.

It also said that the Supreme Court did not address the “ineffectiveness” of the first trial judge in using safeguards against disproportionate awards which, leading to appeals or re-trials, “may entail both considerable costs and inevitable delay before the decision is given”.

“While […] the impugned articles relating to (the consultant) did not focus readers’ attention on the public interest issue regarding the awarding of public contracts, the reference […]  to a potential chilling effect on the Irish media cannot be regarded as devoid of any foundation”, the judgement read.

The ECtHR rejected The Independent Newspapers (Ireland) Limited request for 1,315,448 Euros in non-pecuniary damages and costs; the publisher was awarded only 20,000 Euros to cover the cost of the proceedings.

Case of Independent Newspapers (Ireland) Limited v. Ireland, application no.28199/15. 15 June 2017

 

 





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