Information Note on the Court’s case-law 208

June 2017

Independent Newspapers (Ireland) Limited v. Ireland - 28199/15

Judgment 15.6.2017 [Section V]

Article 10

Article 10-1

Freedom of expression

Absence of adequate and effective safeguards concerning damages award in libel action: violation

Facts – The applicant company, which at the material time published the Evening Herald newspaper, was sued by a public-relati ons consultant (Ms L.) after running a series of articles attacking her business and personal integrity in connection with an award of Government contracts. Ms L. brought a civil action against the applicant company in defamation and the jury found in her favour. On the question of damages, the trial judge gave directions to the jury in accordance with the Barret rules* that had been laid down by the Supreme Court in 1986. He did not give any specific guideline to the jury regarding the appropriate level of compensation, stressed the limited nature of the guidelines he could provide and indicated, in broad terms, that, when assessing damages the jury must bear in mind reality, the current times, the cost of living and the value of money. He warned the jurors not to be “overcome by feelings of generosity”. The jurors assessed damages at EUR 1,872,000. On appeal, the Supreme Court set the award aside as being excessive and substituted its own assessment of damages in an amount of EUR 1,250,000.

In the Conventio n proceedings, the applicant company complained that the award was excessive and signified the absence of adequate and effective safeguards in domestic law, in violation of its right to freedom of expression under Article 10 of the Convention.

Law – Artic le 10: The award of damages against the applicant company constituted a restriction on the exercise of its right to freedom of expression, which interference was prescribed by law and pursued the aim of protecting Ms L.’s reputation and her right to respec t for her private and family life.

As to whether the interference could be regarded as “necessary in a democratic society”, the Court, following its approach in the Independent News and Media case, examined the adequacy and efficacy, in the circumstances o f the applicant company’s case, of the domestic safeguards against disproportionate awards. It noted in that connection that unpredictably high damages in libel cases were considered capable of having a chilling effect and therefore required the most caref ul scrutiny and very strong justification. The effectiveness – or not – of the safeguard at first instance, the resulting unpredictability of the quantum of damages that was not solely a function of the unique facts of each case, the considerable expense a nd delay entailed by seeking appellate review and, where an award was set aside, a re-trial of the case, were all relevant considerations.

(i) First safeguard – directions to the jury : At first instance, the safeguard took the form of guidance to the jury on how to assess the damages to be awarded. The Court reiterated that in the context of defamation cases, while the jury’s assessment of damages may be inherently complex and uncertain, the uncertainty must be kept to a minimum and the nature, clarity and scope of the directions provided to the jury were key in that regard. In the applicant company’s case the trial judge had had to operate under the strict constraints imposed by the Supreme Court’s case-law. As a result, his directions had remained inevita bly quite generic. While it could not be said that the jury’s discretion was without limit, the Court did not consider that the direction given was such as to reliably guide the jury towards an assessment of damages bearing a reasonable relationship of pro portionality to the injury sustained by Ms L. to her reputation and private and family life. Therefore, and as evidenced by the Supreme Court finding that the jury award was excessive and disproportionate, the first safeguard had proved ineffective.

(ii) Second safeguard – appellate review : The Supreme Court had set aside the High Court award and, to that extent at least, the appellate safeguard was effective. However, the Supreme Court had gone on, exceptionally, to substitute its own award. The amount of that award was higher than any award ever made by a jury or appellate court and was far in excess of amounts the Supreme Court had previously approved or set aside. In the Court’s view, the quite legitimate but exceptional exercise by the Supreme Court of its power to substitute its own assessment of damages for that of the jury, along with the exceptional nature of the final award from a domestic perspective, pointed to a need for comprehensive reasons explaining the final award. However, while its award was not entirely unreasoned, the Supreme Court did not explain, apart from reapplying the Barrett principles which had formed the basis for the charge to the jury and comparing, with caution, a previous defamation case, how it arrived at the figure of EUR 1,250,000. Nor, despite strong misgivings voiced by the experienced trial judge at the constraints deriving from the Supreme Court’s case-law restricting the terms in which he could direct the jury, did it address the ineffectiveness in the instant case of that crucial safeguard against disproportionate awards.

***

The Court stressed in conclusion that what was at issue in the present case was not the respondent State’s choice of a system of trial judge and jury, but rather 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 and, in the event that the appellate court engaged in a fresh assessment, relevant and sufficient reasons for the substituted award.**

Conclusion : violation (unanimously).

Article 4 1: claims in respect of pecuniary and non-pecuniary damage dismissed, the Court being unable to speculate on the outcome of the proceedings had there been no violation.

(See also Tolstoy Miloslavsky v. the United Kingdom , 18139/91 , 13 July 1995; Independent News and Media and Independent Newspapers Ireland Limited v. Ireland , 55120/00, 16 June 2005, Information Note 76 )

* Barrett v. Independen t Newspapers Limited [1986] IR 13.

** The Court also noted that the legal regime in Ireland had changed since the events in the applicant company’s case with the adoption of the Defamation Act 2009, which included new provisions allowing the trial judge to give more detailed directions to the jury when assessing damages.

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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