Sentencia T.E.D.H. de 16 de junio de 2005 RESUMEN:
Proporcionalidad de las indemnizaciones
1. The case originated
in an application (no. 55120/00) against Ireland lodged with the
Court under Article 34 of the Convention for the Protection of Human
Rights and Fundamental Freedoms ("the Convention")
by two Irish registered companies, Independent News and Media plc
and Independent Newspapers (Ireland) Limited ("the applicants"),
on 20 December 1999.
2. The applicants
were represented by Ms P. Mullooly, a solicitor practising in Dublin.
The Irish Government ("the Government") were represented
by their Agents, Ms D. McQuade and, subsequently, Ms P. O'Brien,
both of the Department of Foreign Affairs.
3. The applicants
complained that the domestic safeguards against disproportionately
high jury awards in libel cases were inadequate.
4. The application
was allocated to the Fourth Section of the Court (Rule 52 § 1 of
the Rules of Court). Within that Section, the Chamber that would
consider the case (Article 27 § 1 of the Convention) was constituted
as provided in Rule 26 § 1.
5. On 1 November
2001 the Court changed the composition of its Sections (Rule 25
§ 1). This case was assigned to the newly composed Third Section
(Rule 52 § 1).
6. By decision
of 19 June 2003, the application was declared admissible.
7. The Government,
but not the applicants, filed observations on the merits (Rule 59
§ 1). Comments were also received from seven third parties all of
whom had been given leave by the President to intervene (Article
36 § 2 of the Convention and Rule 44 § 2). The applicants replied
to the Government's comments (Rule 44 § 5), and the parties to the
third parties' comments, at the oral hearing.
8. A hearing took
place in public in the Human Rights Building, Strasbourg, on 16
October 2003 (Rule 59 § 3).
There appeared before the Court:
(a) for the Government
Ms. P. O'Brien, Agent,
Ms. D. McQuade, Co-Agent,
Mr. D. O'Donnell S.C., Mr. B. Murray S.C., Ms. U. Ní Raifeartaigh, Counsel, Ms. R. Terry, Mr. L. O'Daly, Advisers;
(b) for the applicants
Mr. E. McCullough, S.C., Counsel,
Ms. P. Mullooly, Mr. S. McAleese, Solicitors.
The Court heard addresses by Messrs McCullough S.C., O'Donnell
S.C. and Murray S.C..
I. THE CIRCUMSTANCES OF THE CASE
9. The applicants
are Irish registered companies. The second applicant publishes newspapers
including the Sunday Independent and
is a wholly owned subsidiary of the first applicant (formerly known
as Independent Newspapers plc).
A. The relevant publication
10. The case concerns
an article published in the Sunday Independent,
a newspaper with the biggest circulation of any Sunday newspaper
and which sold in the region of 250,000 copies at the relevant time.
11. On 13 December
1992 an article was published in the newspaper written by a well-known
journalist and entitled "Throwing good money at jobs is
dishonest". The article commented, inter
alia, on a recently discovered letter (dated September
1986) to the Central Committee of the Communist Party of the Soviet
Union. The letter had been signed by two persons one of whom was Mr
de Rossa, a very well-known politician. The letter referred to "special
activities" that had previously met shortfalls in the funding of
the Worker's Party, a political party of which Mr de Rossa had been
leader. At the time of publication, Mr de Rossa was leader of another
political party (the Democratic Left), he was a member of parliament
and he was engaged in post-election negotiations about his party's
participation in government.
12. The relevant
portion of the article stated that:
"Irish society is divided. As the political parties
manoeuvre to try to form a Government a clear picture has emerged,
revealing the nature of our differences.
On one side of the argument are those who would find the
idea of Democratic Left in cabinet acceptable. These people are prepared
to ignore Democratic Left leader Proinsias de Rossa's reference
to the ''special activities' which served to fund the Workers Party
in the very recent past.
The ''special activities' concerned were criminal. Among
the crimes committed were armed robberies and forgery of currency.
The people engaged in this business occupied that twilight
world where the line blurs between those who are common criminals
and others of that ilk who would claim to be engaged in political
This world is inhabited by myriad groups, some dealing
in drugs, prostitution, protection rackets, crimes of which the
weakest members of society are invariably the victims.
It is therefore, ironic, wickedly so, that a political
party claiming to ''care' for the workers should accept funding from
''special activities' of a particularly nasty kind.
There is no doubt that elements of Proinsias de Rossa
''s Workers Party were involved in ''special activities'. What remains unproven
is whether de Rossa knew about the source of his party's funds.
There is evidence, strengthened by revelations in the Irish Times
this week, that de Rossa was aware of what was going on.
If one is to allow him the benefit of the doubt, and why
not, one must nevertheless have some misgivings about those with whom
he so recently associated.
Justice demands that we welcome Democratic Left's recent
conversion to decency and indeed, acknowledge that their Dáil deputies
are exemplary in the conduct of the work they engage in on behalf
of their constituents.
Still, questions remain unanswered about the Workers Party's
''special activities' phase, not to mention their willingness to
embrace the Soviet Communist party long after the world knew about
the brutal oppression that this and other Communist regimes visited
on workers, intellectuals and others who would think and speak freely.
Proinsias de Rossa's political friends in the Soviet Union
were no better than gangsters. The Communists ran labour camps. They
Men like Andrei Sakharov and Vaclav Havel were persecuted.
Citizens who attempted to flee this terror were murdered. In Berlin,
the bodies left to rot in no man's land between tyranny and liberty.
Is it really necessary to remind ourselves of those ''special activities'?"
13. In 1993 Mr
de Rossa initiated a libel action (High Court) against the first
applicant. The first trial lasted eight days: the jury was discharged
(following the publication of an article by the first applicant).
The second trial lasted fifteen days: the jury failed to reach a
B. De Rossa v. Independent Newspapers
plc (the High Court)
14. The third trial
lasted eleven days and ended on 31 July 1997.
15. In his directions
to the jury on damages, the trial judge stated:
"... damages are meant to compensate a person
for a wrong. ... The only remedy available to a person who says
he has been wronged in a newspaper is damages. Damages are meant
to put a person, in so far as money can do it, in the position that
he or she would have been if the wrong had not taken place. That
is the enterprise you are engaged in, in relation to damages."
16. He then referred
to Mr Justice O'Flaherty's judgment in an unnamed case (which was,
in fact, Dawson and Dawson v. Irish Brokers
Association, Supreme Court judgment of 27 February 1997, unreported):
" ... in a recent case, Mr. Justice O'Flaherty
of the Supreme Court said, that the approach in cases of this kind
should be no different from any other type of proceedings. The jury
should be told that their first duty is to try to do essential justice
between the parties. They are entitled to award damages for loss
of reputation as well as for the hurt, anxiety, trouble and bother
to which the Plaintiff has been put."
17. He went on
to quote with approval Mr Justice Henchy's judgment in another unnamed
case (which was Barrett v. Independent
Newspapers Ltd  I.R. 13) as follows:
"It is the duty of the Judge to direct the Jury
that the damages must be confined to such sum of money as would
fairly and reasonably compensate the Plaintiff for his injured feelings,
and for any diminution in his standing among right thinking people
as a result of the words complained of. The Jury have to be told
they must make their assessment entirely on the facts found by them, and
among the relevant considerations proper to be taken into account
are the nature of the libel, the standing of the Plaintiff, the extent
of the publication, the conduct of the Defendant at all stages of
the case, and any other matter which bears on the extent of the
18. The trial judge
"Now Mr. Justice Henchy, in the case he was dealing
with, said that the jury in that particular case wasn't given any
real help as to how to assess compensatory damages, and he laid
down a guide which could assist the Jury. He considered that in
the case in question the jury could be asked to reduce the allegation
complained of to actuality, and then to fit the allegation into
its appropriate place in the scale of defamatory remarks to which
the Plaintiff could be subjected.
Now that particular case affords you great assistance
in placing the nature of the defamation in a scale, because that
case Mr. Justice Henchy was referring to, revolved around an allegation
by a politician that a journalist [sic.] tweaked his beard. Now
it related to the time of one of the pushes against Mr. Haughey,
and after an abortive push against him, everybody was coming out
to a crowded area of Leinster House, bustling out, and something
was written in the Evening Herald which involved an allegation [that]
a politician tweaked the Evening Herald journalist's beard. Now
the learned Trial Judge found that to be defamatory and directed
there be an assessment of damages.
Going back to Mr. Justice Henchy's observation, if you
examine the words and put them in a scale of things, compare the
allegation with tweaking a journalist's beard, with an allegation
that Mr. de Rossa was involved in or tolerated serious crime, and
that he personally supported anti-Semitism and violent Communist
oppression. It would not surprise me, Members of the Jury, if you went
to the opposite end of the scale and even, apart from Mr. Justice
Henchy's helpful observations, I think there can be no question
in this case but that if you are awarding damages you are talking
about substantial damages.
Now as Counsel told you, I am not allowed to suggest to
you figures, and Counsel are not allowed suggest to you figures
either. I have gone as far as I can to help in relation to that
question. I don't think anybody takes issue with the proposition
if you are awarding damages they are going to be substantial. Mr.
de Rossa at the time was leader of a political party. The political
party was seeking to go into government. Damages will be substantial.
It is all I can say to you. It is a matter for you to assess what
they ought to be, if you are assessing damages."
19. The jury found
that the impugned words implied that Mr de Rossa had been involved
in or tolerated serious crime and that he had personally supported
anti-semitism and violent communist oppression. The jury went on
to assess damages at 300,000 Irish pounds (IR£).
20. The first applicant
appealed the award. It accepted that the jury had been directed
on damages in accordance with the law but noted that the trial judge
had been therefore obliged to confine his directions to a statement
of general principles and to eschew any specific guidance on the
appropriate level of general damages. Neither counsel nor the trial
judge could suggest any figures to the jury and this practice was
inconsistent with the provisions of the Constitution and of the
Convention. Specific guidelines should be given to the jury in such
cases including a reference to the purchasing power of any award
made and to the income which the award would produce, to what the
trial judge and counsel considered to be the appropriate level of
damages and to awards made in personal injuries and other libel
cases. The first applicant further argued that the common law and
the Constitution required the appellate court to subject jury awards
in defamation actions to stricter scrutiny so that the test which
had been outlined by Mr Justice Henchy in the above-cited Barrett case was no longer sufficient.
A court of appeal should ask itself the following question (the "Rantzen test"): "could
a reasonable jury have thought that this award was necessary to
compensate the plaintiff and to re-establish his reputation?".
The first applicant relied on, inter alia, Ranzen v. M.G.N. Ltd  4 All E.R. 975, and John v. M.G.N. Ltd  2 All E.R. 35)
and on the judgment of this Court in the case of Tolstoy Miloslavskyv. the United Kingdom (judgment of
13 July 1995, Series A no. 323).
C. De Rossa v. Independent Newspapers
plc  4 IR 6 (the Supreme Court)
1. The majority judgment
21. The Chief Justice
delivered the majority judgment of the court on 30 July 1999. He
began by describing the role of juries in the assessment of damages
in defamation actions. It had been conceded by the first applicant
that the trial judge had followed the practice in cases of this
"...that of confining his directions to a statement
of general principles, eschewing any specific guidance on the appropriate
level of general damages".
As pointed out by the Master of the Rolls in the above-cited John v. M.G.N. case:
"Judges, as they were bound to do, confined themselves
to broad directions of general principle, coupled with injunctions
to the jury to be reasonable. But they gave no guidance on what
might be thought reasonable or unreasonable, and it is not altogether surprising
that juries lacked an instinctive sense of where to pitch their
awards. They were in the position of sheep loosed on an unfenced
common, with no shepherd."
22. This was explained
by the fact that the assessment of damages in libel cases was "peculiarly
the province of the jury" As stated by Chief Justice Finlay
in the Barrett case (cited
above) the assessment by a jury of damages for defamation had a "very unusual
and emphatic sanctity" so that the appellate courts had
been extremely slow to interfere with such assessments. As emphasised
in the above-cited John v. M.G.N. case,
the ultimate decision, subject to appeal, was that of the jury which
was not bound by the submissions made to it.
23. The Chief Justice
outlined the relevant domestic law. He considered that there was
no conflict between the common-law and the Constitutional provisions,
on the one hand, and Article 10 of the Convention, on the other.
Article 10, as noted in the Tolstoy Miloslavsky judgment,
required that "an award of damages for defamation must
bear a reasonable relationship of proportionality to the injury
to reputation suffered". He continued:
"By virtue of the provisions of Article 40.6.1o
of the Constitution, the defendant is entitled, subject to the restrictions
therein contained, to exercise the right to express freely its convictions
The exercise of such right is subject however to the provisions
of the Constitution as a whole and in particular the provisions of
Article 40.3.1o and 40.3.2o which require the State by its laws
to protect as best it may from unjust attack, and in the case of injustice
done to vindicate the good name of every citizen.
Neither the common law nor the Constitution nor the Convention
give to any person the right to defame another person.
The law must consequently reflect a due balancing of the
constitutional right to freedom of expression and the constitutional protection
of every citizen's good name (Hynes-O'Sullivan.
v. O'Driscoll  I.R. 436). This introduces the
concept of proportionality which is recognised in our constitutional
He cited, as the law applicable in the State, the judgment
of Mr Justice Henchy in the above-cited Barrett case
(see also paragraphs 44-46 below) and considered that a passage
therein (the duty of the trial judge to direct the jury to confine
damages to a sum as would "fairly and reasonably compensate
the plaintiff for his injured feelings and for any diminution in
his standing among right-thinking people") emphasised the
following elements of Irish law:
"(a) ... it is the duty of the judge to direct
the jury that the damages must be confined to such sum of money
as will fairly and reasonably compensate the plaintiff for his injured
feelings and for any diminution of his standing among right-thinking
people as a result of the words complained of;
(b) ... it is a fundamental principle of the law of compensatory
damages that the award must always be reasonable and fair and bear
a due correspondence with the injury suffered; and
(c) ... if the award is disproportionately high, it will
be set aside and not allowed stand."
24. The obligations
arising from the provisions of the Constitution and the Convention
were met by the laws of Ireland, which "provides that the
award must always be reasonable and fair and bear a due correspondence
with the injury suffered and by the requirement that if the award
is disproportionately high, it will be set aside."
and as regards directions to be given to juries, neither the Constitution
nor the Convention required a change as suggested by the first applicant.
The added guidelines recommended by the Court of Appeal in the case
of John v. M.G.N. were not
based on the Convention but were a development of English common
law. Indeed, he regarded the changes brought about by the case of John v. M.G.N. as not "modest" but "fundamental" in
that they "radically altered" the general practice
with regard to the instructions to be given to a jury as to the
manner in which they should approach the assessment of damages in
a defamation action. If the approach adopted in the Rantzen case and developed in the John v. M.G.N. case was to be adopted
in Ireland, the jury would be buried in figures from the parties
representatives and from the judge in respect of both libel and
personal injuries' damages previously awarded, while at the same
time being told that they were not bound by such figures. He was
satisfied that the giving of such figures, even in guideline form,
would constitute an unjustifiable invasion of the domain of the
jury. Awards in personal injury cases were not comparable with libel
awards and thus he preferred the view on this particular matter
expressed in the Rantzen case
as opposed to the John v. M.G.N case.
Informing juries of libel awards approved by the Court of Appeal
would not have been recommended in the John
v. M.G.N. case but for the Courts and Legal Services
Act 1990 (a law which concerned the power of the Court of Appeal)
in the United Kingdom.
26. On the contrary,
the jury must base its assessment entirely on the facts of the case
as established by it (Mr Justice Henchy in the Barrett case)
and a departure from that principle would lead to utter confusion.
Each defamation action had its own unique features and a jury assessing
damages had to have regard to each feature. Those features, which
could vary from case to case, included the nature of the libel,
the standing of the plaintiff, the extent of publication, the conduct
of the defendant at all stages and any other relevant matters. Figures
awarded in other cases based on different facts were not matters
which the jury should be entitled to take into account. The Chief
Justice was not therefore prepared to change the traditional guidelines
given to juries in the assessment of damages in libel cases.
27. He clarified
that this did not mean that the discretion of the jury in libel
cases was limitless:
"... the damages awarded by a jury must be fair
and reasonable having regard to all the relevant circumstances and
must not be disproportionate to the injury suffered by the injured
party and the necessity to vindicate such party in the eyes of the
public. Awards made by a jury are subject to a right of appeal and
on the hearing of such appeal, the awards made by a jury are scrutinised to
ensure that the award complies with these principles."
28. The Chief Justice
then turned specifically to appellate reviews of such jury awards.
He began quoting with approval Chief Justice Finlay in the Barrett case: while the jury assessment
was not sacrosanct in the sense that it could never be disturbed
on appeal, it had a very "unusual and emphatic sanctity" in
that the jurisprudence had clearly established that the appellate
courts had been "extremely slow" to interfere
with such assessments. He also quoted with approval from the Court
of Appeal judgment in the John v. M.G.N. case
(at p. 55): "real weight must be given to the possibility
that [the jury's] judgment is to be preferred to that of a judge".
29. He summarised
the impact of these extracts as follows:
"Both judgments recognise that the assessment
of damages is a matter for the jury and that an appellate court
must recognise and give real weight to the possibility that their
judgment is to be preferred to that of a judge.
Consequently, an appellate court should only set aside
such an award made by a jury in a defamation action if the award
is one which no reasonable jury would have made in the circumstances
of the case and is so unreasonable as to be disproportionate to
the injury sustained."
30. He rejected
the argument that larger awards should be subjected to a more searching
scrutiny than had been customary in the past. He did not agree that
the Rantzen test proposed
by the first applicant ("could a reasonable jury have thought
that this award was necessary to compensate the plaintiff and to
re-establish his reputation") was the test to be applied,
noting that that test "differs substantially from the test
which has hitherto applied". If the Rantzen test
were to be applied it would remove the "very unusual and
emphatic sanctity" from jury awards and would take away
the giving of "real weight" to the possibility
that the jurors' judgment is to be preferred to that of the judge.
"Consequently, while awards made by a jury must,
on appeal be subject to scrutiny by the appellate court, that Court
is only entitled to set aside an award if it is satisfied that in
all the circumstances, the award is so disproportionate to the injury
suffered and wrong done that no reasonable jury would have made
such an award."
31. Applying that
test, the Chief Justice considered whether the damages awarded were
excessive and disproportionate to any damage done to Mr de Rossa.
He recalled that the factors to be taken into account were well
established and he quoted with approval those outlined in the John v. M.G.N. judgment (pp. 47-48).
32. As to the gravity
of the libel, he noted that the libel clearly affected Mr de Rossa's
personal integrity and professional reputation. It was hard to imagine
a more serious libel given the nature of the allegations, the profession
of Mr De Rossa and the ongoing negotiations concerning his participation
33. As to the effect
on him, the Chief Justice referred to his evidence before the High
Court as to the hurt and humiliation caused to him and his determination
to vindicate his personal and professional reputation. This evidence
was obviously accepted by the jury and it was easy to imagine the
hurt and distress allegations of this nature would cause.
34. The extent
of the publication was wide: it was conceded by the parties that
the "Sunday Independent" had a wide circulation throughout
the State and was read each Sunday by over one million persons.
35. The Chief Justice
then considered the conduct of the first applicant up to the date
of the verdict, including whether or not an apology, retraction
or withdrawal had been published. The lack of an apology was regarded
as being of considerable importance, a matter highlighted by Mr
de Rossa's evidence during the second and third trials. The passages
cited by the Chief Justice demonstrated clearly, in his view, that
all Mr de Rossa required was a withdrawal of the allegations in
the absence of which he was obliged to endure three trials to secure
vindication of his reputation during which he was subjected to "immensely
prolonged and hostile cross-examination" by Counsel for
the first applicant and his motives for bringing the action were
challenged as were Mr de Rossa's bona fides and
36. The Chief Justice
"The Respondent is entitled to recover, as general
compensatory damages such sum as will compensate him for the wrong which
he has suffered and that sum must compensate him for the damage
to his reputation, vindicate his good name and take account of the
distress, hurt and humiliation which the defamatory publication
has caused. Such sum should, however, be fair and reasonable and
not disproportionate to the wrong suffered by the Respondent.
The jury found that the words complained of by the Respondent
meant that the Respondent was involved in or tolerated serious crime
and personally supported anti-Semitism and violent Communist oppression.
If these allegations were true, the Respondent was guilty
of conduct, which was not only likely to bring him into disrepute
with right-minded people but was such as to render him unsuitable
for public office.
No more serious allegations could be made against a politician
such as the Respondent herein.
Having regard to the serious nature of the said libel,
its potential effect on the career of the Respondent, and the other
considerations as outlined herein, it would appear to me that the
jury would have been justified in going to the top of the bracket
and awarding as damages the largest sum that could fairly be regarded
The jury assessed damages in the sum of £300,000. This
is a substantial sum but the libel was serious and grave involving
an imputation that the Respondent was involved in or tolerated serious
crime and that he personally supported anti-Semitism and violent
Bearing in mind that a fundamental principle of the law
of compensatory damages is that the award must always be reasonable and
fair and bear a due correspondence with the injury suffered and
not be disproportionate thereto, I am not satisfied that the award
made by the jury in this case went beyond what a reasonable jury
applying the law to all the relevant considerations could reasonably
have awarded and is not disproportionate to the injury suffered
by the Respondent."
37. The award approved
by the Supreme Court, IR£300,000, was three times more than the
highest libel award previously approved by that court. The award
and Mr de Rossa's legal costs were discharged by the second applicant
as were the first applicant's own legal costs.
2. The dissenting judgment (Mrs
38. As to the guidelines
to be give to jurors and having reviewed relevant judgments from
certain common-law jurisdictions and in the above-cited Tolstoy Miloslavsky case, Mrs Justice
Denham was in favour of giving further guidelines to jurors including in
respect of prior libel awards made or affirmed by the Supreme Court,
prior awards in personal injuries' cases, the purchasing power of
an award and the income it might produce together with the level
of award deemed appropriate. There was nothing in principle to prevent
comparative figures being so provided: it would not diminish the
place of the jury if it was informed of issues relevant to the proportionality
of the damages. Indeed, as in the John
v. M.G.N. judgment, she considered that such information would
enhance the role of the jury since it would be assisted by comparative
and other relevant information.
39. As to the required
test to be applied by the appellate court, she recalled and quoted
with approval the judgments of Chief Justice Finlay and of Mr Justice
Henchy in the Barrett case.
She saw no reason why, if the Chief Justice in that case was making a
comparative assessment of awards, this information should not be
available to the jury. She agreed that the appellate court should
strive to determine the reasonableness and proportionality of awards
as outlined in the Barrett case,
but the effectiveness of that appellate review depended on the prior
availability to the jury at first instance of adequate guidelines
on damage levels. Such an approach, she believed, would enable the
system to be more consistent and comparative and would allow it
to appear more rational.
40. As to whether
the award in the present case was excessive, she noted that there
were strong similarities between the present case and the case of McDonagh v. News Group Newspaper Limited (Chief
Justice Finlay, Supreme Court judgment of 23 November 1993, unreported):
both plaintiffs had a standing in the community and the relevant
publications were seriously defamatory. However, the award in the McDonagh case was considered to be
at the top of the permissible range. Even allowing for the additional
aggravating matters in the present case, it was clear that the award
was "beyond that range in the sense that it is so incorrect
in principle that it should be set aside". She considered
that the award to Mr de Rossa should be reduced to IR£150,000 and
"In principle it is open to the Court to provide
guidelines on the charge to be given by a judge to a jury in libel
cases. Guidelines on levels of damages given by a judge would aid
the administration of justice. Guidelines would give relevant information
and aid comparability and consistency in decision-making. Such guidelines
would relate only to the level of damages - not the kernel issue as
to whether or not there had been defamation. Thus, such guidelines
would not impinge of the area traditionally viewed in common law
jurisdictions as a matter quintessentially for the jury. More specific
guidelines on the level of damages would help juries and the administration
of justice by bringing about more consistent and comparable awards
of damages and awards which would be seen as such. Specific guidelines
would also inform an appellate court in its determination as to
whether an award is reasonable and proportionate. The award in this
case was excessive and on the principles of reasonableness and proportionality
I would reduce it to £150,000."
II. RELEVANT LAW AND PRACTICE
A. The Constitution
41. Article 40(3)
of the Irish Constitution provides, in so far as relevant, as follows:
"1. The State guarantees in its laws to respect,
and, as far as practicable, by its laws to defend and vindicate
the personal rights of the citizen.
2. The State shall, in particular, by its laws protect
as best it may from unjust attack and, in the case of injustice
done, vindicate the life, person, good name, and property rights
of every citizen."
42. Article 40(6)(1)
provides, in so far as relevant, as follows:
"The State guarantees liberty for the exercise,
subject to public order and morality:
i. The right of the citizens to express freely their convictions
and opinions. The education of public opinion being, however, a matter
of such grave import to the common good the State shall endeavour
that organs of public opinion, such as the radio, the press, the
cinema, while preserving their liberty of expression, including
criticism of Government policy, shall not be used to undermine public
order or morality or the authority of the State."
B. Relevant Irish jurisprudence-defamation
43. The jury assess
damages following its finding of defamation. The Supreme Court can
review and quash the award of a jury of the High Court. It does
not substitute its own award but rather refers the matter back to
the High Court for a further trial on damages before a different
jury. The second jury will not be informed that an earlier award
was quashed nor, consequently, of the decision or reasoning of the
1. Barrett v. Independent Newspapers
Limited  I.R.13
44. The case concerned
a defamatory allegation that a politician had pulled a journalist's
beard when leaving parliament. The jury award (IR£65,000) was set
aside by the Supreme Court. The Chief Justice considered the following
principles to apply to the award (at p. 19):
"Firstly, whilst the assessment by a jury of
damages for defamation is not sacrosanct in the sense that it can
never be disturbed upon appeal, it certainly has a very unusual
and emphatic sanctity in that the decisions clearly establish that
appellate courts have been extremely slow to interfere with such
assessments, either on the basis of excess or inadequacy. Secondly,
it is clear that whilst the damages in this case at least, where
no question of punitive or exemplary damages arises, are fundamentally
compensatory in form, that the plaintiff is entitled not only to
be compensated for the damage to his reputation arising from the
publication of the defamation, but also for the hurt, anxiety and
distress to him arising by its publication and by the subsequent
conduct of the defendant right up to the time of the assessment
of the damages."
45. He also maintained
that certain factors which the jury were entitled to take into account
(including the standing of the plaintiff, the nature of the allegation,
the failure by the newspaper to publish the plaintiff's denial and
its maintenance of the allegation until the verdict) would have
justified the jury in going to the top of the bracket and awarding
the largest sum that could fairly be awarded as compensation. He
continued (at p. 20):
"Notwithstanding these views, and notwithstanding
the fact that this is clearly a case in which a jury would be entitled
to award really substantial damages ... the sum of £65,000 awarded
by the jury is so far in excess of any reasonable compensation for
the allegation which was made, that it should be set aside."
46. Mr Justice
Henchy outlined the principles as follows (pp. 23-24):
"The second ground of appeal is that the award
of £65,000 is so excessive as to be unsustainable. In a case such
as this, ... it is the duty of the judge to direct the jury that
the damages must be confined to such sum of money as will fairly
and reasonably compensate the plaintiff for his injured feelings
and for any diminution in his standing among right-thinking people
as a result of the words complained of. The jury have to be told
that they must make their assessment entirely on the facts found
by them, and they must be given such directions on the law as will
enable them to reach a proper assessment on the basis of those facts.
Among the relevant considerations proper to be taken into account
are the nature of the libel, the standing of the Plaintiff the extent
of the publication, the conduct of the Defendant at all stages of
the case and any other matter which bears on the extent of damages.
The fact remains, however, that the jury were not given
any real help as to how to assess compensatory damages in this case. A
helpful guide for a jury in a case such as this would have been
to ask them to reduce to actuality the allegation complained of, namely,
that in an excess of triumphalism at his leader's success the plaintiff
attempted to tweak the beard of an unfriendly journalist. The jury
might then have been asked to fit that allegation into its appropriate
place in the scale of defamatory remarks to which the plaintiff
might have been subjected. Had they approached the matter in this
way, ... the allegation actually complained of would have come fairly
low in the scale of damaging accusations. The sum awarded, however,
is so high as to convince me that the jury erred in their approach.
To put it another way, if £65,000 were to be held to be appropriate
damages for an accusation of a minor unpremeditated assault in a
moment of exaltation, the damages proper for an accusation of some
heinous and premeditated criminal conduct would be astronomically
high. Yet a fundamental principle of the law of compensatory damages
is that the award must always be reasonable and fair and bear a
due correspondence with the injury suffered. In my view, the sum
awarded in this case went far beyond what a reasonable jury applying
the law to all the relevant considerations could reasonably have awarded.
It was so disproportionately high that in my view it should not
be allowed to stand."
2. McDonagh v. News Group Newspapers
Limited (Supreme Court judgment of 23 November 1993, unreported)
47. The impugned
words were found by the jury to mean that the plaintiff barrister
was, inter alia, a sympathiser
with terrorist causes and incapable of performing his duties objectively.
The jury award IR£90,000: it was not set aside on appeal. The Chief Justice
"... I am satisfied that there are not very many
general classifications of defamatory accusation which at present
in Ireland, in the minds of right-minded people, would be considered
significantly more serious. To an extent the seriousness may be
somewhat aggravated by the fact that it is an accusation which has
been made against a person who has a role, by reason of his profession and
by reason of his standing as a member of the bar, in the administration
48. He described
a lawyer's role in the relevant situation and continued:
"The combined accusations made against the Plaintiff
are that he failed or was likely to fail completely to do that,
and that instead as a piece of major professional misconduct he
abused the function which had been entrusted to him by his client."
49. As to the damages
award of the jury, he concluded:
"A statement which makes that accusation and
in addition makes the accusation of sympathy with terrorist causes
would be extraordinarily damaging to any person, irrespective of
their calling or profession. I, as I have indicated, take the view
that the assessment of damages made by this jury, though undoubtedly
high and at the top end of the permissible range, is not beyond
that range in the sense that it is so incorrect in principle that
having regard to the general approach of an appellate court to damages assessed
by a jury for defamation it should be set aside. I would, therefore,
dismiss the appeal."
3. Dawson and Dawson v. Irish
Brokers Association (Supreme Court judgment of 27 February 1997,
50. The plaintiff
brothers were insurance brokers and took a libel action against
the Irish Brokers Association about a letter in which the latter
informed various industry bodies including the relevant Minister
that the plaintiffs' company's membership of the Association had
been terminated for non-compliance with the requirements of insurance
legislation. Having found the letter defamatory, the jury awarded
51. On the level
of damages, Mr Justice O'Flaherty found as follows:
"... I have reached the clear conclusion that
the award is so excessive as to call for the intervention of this
Court. It is wholly disproportionate to any injury suffered by the
The approach to the assessment of damages in a [defamation]
action is in essence no different from any other type of proceeding.
The jury should, in the first instance, be told that their first
duty is to try to do essential justice between the parties. [In
cases where damages could be compensatory only, the jury] were entitled
to award damages for loss of reputation, as well as for the hurt,
anxiety, trouble and bother to which the plaintiffs had been put.
However, the defendants in defamation cases should never be regarded
as the custodians of bottomless wells which are incapable of ever
running dry. ... Further, unjustifiably large awards, as well as
the costs attendant on long trials, deals a blow to the freedom
of expression entitlement that is enshrined in the Constitution."
52. Quoting with
approval the judgment of Mr Justice Henchy in the above-cited Barrett case and noting the evidence
of harm to the plaintiffs' reputation and of the defendant's conduct,
Mr Justice O'Flaherty continued:
"Giving the case the most favourable construction
in regard to the plaintiffs - in the sense of asking one's self
what damages have the plaintiffs made out in regard to loss of reputation
etc., and taking their case at the high water mark - nonetheless,
the award viewed even from that perspective must be regarded as
so excessive that it cannot stand."
53. The Supreme
Court ordered a re-trial. At the end of the fourth trial in the
High Court, a jury awarded IR£135,000.
4. O'Brien v. M.G.N. Ltd (Supreme
Court judgment of 25 October 2000, unreported)
54. Mr O'Brien
was a well-known and successful businessman. The jury found defamatory
M.G.N. Ltd's allegations that he had, inter
alia, bribed politicians to secure radio licences and
been involved in other corrupt practices. The jury awarded IR£250,000
in damages. M.G.N. Ltd requested the Supreme Court to re-consider
its judgment in the de Rossa appeal
arguing, inter alia, that
the latter judgment was wrong in so far as it considered that the
principles laid down in the Barrett case
were consistent with Article 10 of the Convention and with the Constitution.
55. The Chief Justice
delivered the majority judgment of the court (joined by Mr Justice
Murphy and Mr Justice O'Higgins), refusing to reconsider its de Rossa judgment but setting aside
the jury award. Its previous judgment would not be reconsidered as
it was not so "clearly wrong" that there were "compelling
reasons" why it should be overruled. The O'Brien appeal had to be dealt with
therefore on the basis of the principles outlined by the Supreme
Court in the de Rossa and Barrett cases.
56. The general
principle which the Chief Justice considered he must apply to his
review of the award was that outlined by Mr Justice Henchy in the Barrett case, namely:
"Yet a fundamental principle of the law of compensatory
damages is that the award must always be reasonable and fair and bear
a due correspondence with the injury suffered. In my view, the sum
awarded in this case went far beyond what a reasonable jury applying
the law to all the relevant considerations could reasonably have
awarded. It was so disproportionately high that in my view it should
not be allowed to stand."
57. In determining
proportionality, he considered that there was nothing which precluded
the Supreme Court from determining an appeal on jury libel awards
in the light of other such awards which had also been approved by
that court provided a degree of caution was exercised.
58. The Chief Justice
considered the allegations against Mr O'Brien to be "undoubtedly
seriously defamatory statements which justified the award of substantial
damages". Although he considered the damages' award to
be in the "highest bracket of damages appropriate to any
libel case" and that it was comparable to the non-pecuniary
award "in the most serious cases of paraplegic or quadriplegic
injuries", he considered the libel as serious but not coming
within the category of the grossest and the most serious libels
to have come before the courts. He went on to compare that case
to the de Rossa and McDonagh cases, although he acknowledged
"... ultimately ... this case has to be decided
having regard to its own particular facts and circumstances. I am
conscious of the care which must be exercised by an appellate court
before it interferes with the assessment of damages by a jury in
a case of defamation, but, having weighed up all the factors to
which I have referred, I am satisfied that the award in this case
was disproportionately high and should be set aside."
59. Mr Justice
Geoghegan in his partly dissenting opinion agreed with the Supreme
Court's judgment in the de Rossa case but
did not consider that the jury award had to be set aside.
60. He noted that
various formulations of words had been used by appellate courts
in Ireland and England as to when an appellate court in a libel
action could interfere with a jury award. Although the language
was sharper and stronger in some cases than in others, he was not
sure that there was ever any intended difference and he was inclined
to think that the form of words adopted by Mr Justice Henchy in
the Barrett case (and already
cited by the Chief Justice in that case - see above) was the most helpful.
Having noted Chief Justice Finlay's comment also in the Barrett case about the assessment
of the jury having "a very unusual and emphatic sanctity",
he indicated that he doubted whether Mr Justice Henchy and Chief
Justice Finlay intended to say anything different:
"The true principle would seem to be that in
all cases of compensatory damages whether in libel or in personal
injuries or otherwise an appeal court will not interfere because
its own judges thought the award too high. The court will only interfere
if the award is so high that it is above any figure which a reasonable
jury might have thought fit to award. But although that principle
is the same in all cases of compensatory damages, the application
of the principle will necessarily be different in the case of libel from
the case of personal injuries. In the case of personal injuries
an appeal court can determine with some confidence what would be
the range of awards which a reasonable jury ... might make. ...
In the case of a libel appeal however the appeal Court although it
has to engage in the same exercise, it can only do so with diffidence
rather than confidence. ... Unlike personal injury cases every libel
action is completely different from every other libel action and
therefore the guidelines available to an appeal court in settling
the reasonable parameters of an award are much more limited."
61. He had no hesitation
therefore in leaving the jury award stand as:
"having regard to the diffidence with which an
appeal court should approach the possible setting aside of a jury
award in a libel action, I could not have formed the view that the
jury award was beyond reason."
62. He went on
to explain why comparisons with other libel awards approved by the
Supreme Court were dangerous but that, even if he had to so compare,
his view that the award should not be set aside was not affected
by the facts or award in the de Rossa or McDonagh cases.
63. Mrs Justice
Denham also dissented: she considered that there were compelling
reasons to reconsider the Supreme Court's majority judgment in de Rossa. However, given the view
of the majority that it would not depart from the de Rossa judgment, she applied it,
compared that case and the McDonagh awards
approved by the Supreme Court and found:
"Even allowing for the circumstances of the case,
it is an award which in my view is beyond the range in that it is
so incorrect in principle, it is so disproportionate, that it should
be set aside."
5. Hill v. the Cork Examiner
Publications Limited (Supreme Court judgment of 14 November 2001,
64. Mr Hill was
in prison having pleaded guilty to a charge of assault occasioning
actual bodily harm (to a police officer). The defendant published
an article which was entitled "Isolation of Cork Jail's
C Wing" and which explained that C Wing prisoners were child
molesters and sexual offenders and it included a photograph of Mr
Hill's prison cell. He issued proceedings in December 1995 arguing
that the juxtaposition of the article and the photograph meant and
were understood to mean that he was a child molester or a sexual
offender. During the trial, the foreman of the jury asked for guidelines.
While the trial judge explained that he could not do so, he gave
certain parameters (including the circumstances in which the photograph
came to be taken, that large damages were not merited and that he
was not entitled to damages as if he had a blameless character).
The jury agreed that the article was defamatory and awarded Mr Hill
65. The newspaper
appealed arguing that the award was disproportionate and taking
issue with the absence of guidelines to the jury. The Supreme Court
did not set aside the award, Mr Justice Murphy noting:
"... it is difficult, if not impossible, to find
any nexus between the pain, embarrassment or disfigurement suffered
by a plaintiff and the sum of money which would be appropriate to
compensate him for any such consequences of a wrong doing. Judges
in charging juries as to their responsibilities in determining damages
or in performing the same task themselves can say or do little more
than recall that damages are designed to compensate for the consequences
of a wrong doing and not to punish the wrong doer. It will always
be said - perhaps unhelpfully - that the sum awarded should be reasonable
to the plaintiff and also reasonable to the defendant. In relation
to the extent to which a trial judge could and should give guidance
as to an appropriate measure of damages was considered by [the Supreme
Court in the De Rossa case]
and again in O'Brien .v. M.G.N....
. Whilst other jurisdictions have accepted the concept of such guidelines
that concept has been rejected in this jurisdiction. Apart from
any other consideration there would appear to be insuperable difficulties
for any judge to assemble the appropriate body of information on
which to base such guidelines."
66. He concluded
"There is no doubt that the sum of £60,000 awarded
by the jury was a substantial sum. It may well be at the higher,
or even the highest, of the figures in the range which would be
appropriate to compensate a Plaintiff for the wrong doing which
he has suffered. However I am not satisfied that the figure awarded
is so disproportionate to the injury sustained by the Plaintiff
(Respondent) that it can or should be set aside by this Court."
C. Relevant Irish jurisprudence-Proportionality
67. By judgment
of 23 July 1996 (Heaney and McGuinness
v. Ireland) the Supreme Court rejected the applicants'
appeal finding section 52 of the Offences Against the State Act
1939 not inconsistent with the Constitution. It considered that
the right to silence was a corollary to freedom of expression (guaranteed
by Article 40 of the Constitution) and that the relevant assessment was
to consider the proportionality of the restriction on the right
to silence against the public order exception to Article 40. It
noted that the 1939 Act was aimed at actions and conduct calculated
to undermine public order and the authority of the State and that the
proclamation made under Article 35 of the 1939 Act (that "the
ordinary courts are inadequate to secure the effective administration
of justice and the preservation of public peace and order")
remained in force.
68. As to whether
section 52 restricted the right to silence more than was necessary
in light of the disorder against which the State was attempting
to protect the public, the court noted that an innocent person had
nothing to fear from giving an account of his or her movements even
though such a person may wish, nevertheless, to take a stand on
grounds of principle and to assert his or her constitutional rights.
However, it considered that the entitlement of citizens to take
such a stand must yield to the right of the State to protect itself.
The entitlement of those with something relevant to disclose concerning
the commission of a crime to remain silent must be regarded as of
an even lesser order. That court concluded that the restriction
in section 52 was proportionate to the State's entitlement to protect
69. The case of Murphy v. the Independent Radio and Television
Commission ( 1 I.R. 12) concerned the ban on
the broadcasting of religious advertising pursuant to Section 10(3)
of the Radio and Television Act 1988 ("the 1988 Act").
The Supreme Court considered that the impugned provision of the
1988 Act was a restriction of the appellant's right freely to communicate
and of his right to freedom of expression (Articles 40(3) and 40(6)(1)
of the Constitution, respectively) which rights could be limited
in the interests of the common good. The real question was whether
the limitation imposed upon those constitutional rights was proportionate
to the purpose parliament wished to achieve. Quoting with approval
previous case-law, it described the principle of proportionality:
"In considering whether a restriction on the
exercise of rights is permitted by the Constitution the courts in
this country and elsewhere have found it helpful to apply the test
of proportionality, a test which contains the notions of minimal
restraints on the exercise of protected rights and the exigencies
of the common good in a democratic society. This is a test frequently
adopted by the European Court of Human Rights and by the Supreme
Court of Canada in the following terms. The objective of the impugned provision
must be of sufficient importance to warrant over-riding a constitutionally
protected right. It must relate to concerns pressing and substantial
in a free and democratic society. The means chosen must pass a proportionality
test. They must (a) be rationally connected to the objective and
not be arbitrary, unfair or based on irrational considerations;
(b) impair the right as little as possible; and (c) be such that
the effects on the rights are proportional to the objective."
70. The Supreme
Court found that section 10(3) of the 1988 Act complied with this
test and concluded that:
"It therefore appears to the court that the ban
on religious advertising contained in section 10(3) of the 1988
Act is rationally connected to the objective of the legislation
and is not arbitrary or unfair or based on irrational considerations.
It does appear to impair the various constitutional rights referred
to as little as possible and it does appear that its effects on
those rights are proportional to the objective of the legislation."
D. Other relevant Irish materials
1. Law Reform Commission ("LRC")
71. The LRC consultation
paper of March 1991 considered a number of possible reforms of the
law of defamation in Ireland and provisionally recommended, inter alia, that parties to defamation
actions in the High Court should continue to have the right to have
the issues of fact determined by a jury with the damages in such
actions being assessed by the Judge following the jury's determination
whether nominal, compensatory or punitive damages should be awarded.
2. Report of the Legal Advisory
Group on Defamation ("LAG")
72. The LAG was
established by the Minister for Justice, Equality and Law Reform
with a view to examining reforms of the libel laws to bring them
into line with other States. As regards the respective roles of
the judge and jury, its report of March 2003 provided as follows:
"The initial starting point for the Group's consideration
of this matter was the specific recommendation of the Law Reform
Commission that the parties to defamation actions should continue
to have the right to have issues of fact determined by a jury but
that the damages in such actions should be assessed by a judge.
... The Group was also alert to the valuable role which juries have to
play in defamation actions given the importance, in such actions,
of getting the perspective of the ordinary persons as to whether the
matter complained of should, or should not, be considered defamatory.
At the same time, the Group recognised that there is considerable
dissatisfaction with the law as it currently stands whereby juries
are deprived of guidance when it comes to deciding upon the level
of damages which should be awarded to a successful plaintiff in
a defamation action.
The Group was very much of the view that the division
of function as between judge (assessment of damages) and jury (assessment
of liability) would not operate well in practice. Indeed, the view
was taken that such a division would place judges in a difficult
position since they would not be privy to the seriousness with which
the jury viewed the defamatory matter. Accordingly, the Group concluded
that juries should continue to have a role in assessing damages
in the High Court. However, this role should not be unfettered.
Rather, it was agreed that the parties to the proceedings should
be able to make submissions to the court and address the jury concerning
damages. Furthermore, a statutory provision should be introduced
which would require the judge in High Court proceedings to give
directions to the jury on this matter. Such a provision should be
general in nature but would, in an appropriate case, allow a judge
to refer to the purchasing power of the likely award, the income
which it might produce, the scale of awards in previous defamation
cases and the appropriate level of damages in all the circumstances
of the case. These provisions should be in addition to the basic
provision which would specify a broad range of factors to which
regard should be had when making an award of [non-pecuniary] damages.
It was felt that provisions of this kind would be consistent with
recent developments within the United Kingdom and other common law
jurisdictions .... and would accord well with the freedom of expression
entitlement enshrined in both the Constitution and the European
Convention on Human Rights.
The final element considered by the Group under this heading
concerned the desirability of having a statutory provision which would
make it clear that, in a defamation appeal from the High Court,
the Supreme Court could substitute its own assessment of damages
for the damages awarded in the High Court. The Group is of the view
that there is considerable merit in a provision of this kind given
the additional costs which litigants would have to bear should a
new trial be ordered and where the only issues for the appellate
court to determine is the appropriateness of the damages award.
² The function of assessing damages in defamation proceedings
heard before a jury should remain with the jury;
² Parties to proceedings should be able to make submissions
to the court and address the jury concerning damages; Judges would
be required to give directions to a jury on the matter of damages;
² In making an award of damages, regard would have to
be had to a non-exhaustive list of matters including, for example,
the nature and gravity of any allegation in the defamatory matter,
the extent to which the defamatory matter was circulated and the fact
that the defendant made or offered an adequate, sufficient and timely
apology, correction or retraction, as the case might be. ...
² There should be an avoidance of doubt provision to the
effect that, in a defamation appeal from the High Court, the Supreme Court
could substitute its own assessment of damages for the damages awarded
in the High Court."
E. Relevant English jurisprudence
1. Rantzen v. M.G.N. Ltd 
All ER 975
73. The Court of
Appeal observed that the grant of an almost limitless discretion
to a jury failed to provide a satisfactory measurement for deciding
what was "necessary in a democratic society" or "justified
by a pressing social need" for the purposes of Article
10 of the Convention. It continued:
"... the common law if properly understood requires
the courts to subject large awards of damages to a more searching
scrutiny than had been customary in the past. It follows that what
had been regarded as the barrier against intervention should be
lowered. The question becomes: could a reasonable jury have thought
that this award was necessary to compensate the plaintiff and to
re-establish his reputation?"
74. As to what
guidance the judge could give to the jury, the Court of Appeal was
not persuaded that the time had come to make references to awards
by juries in previous libel cases. Nor was there any satisfactory
way in which awards made in actions involving serious personal injuries
could be taken into account. It was to be hoped that in the course
of time a series of decisions of the Court of Appeal, taken under
section 8 of the Courts and Legal Services Act 1990, would establish
some standards as to what would be "proper" awards.
In the meantime the jury should be invited to consider the purchasing
power of any award which they may make and to ensure that any award
they make is proportionate to the damage which the plaintiff has
suffered and is a sum which it is necessary to award him to provide
adequate compensation and to re-establish his reputation.
75. The Court of
Appeal concluded in that case that, although a very substantial
award was clearly justified in the case, judged by any objective
standards of reasonable compensation or necessity or proportionality,
an award of 250,000 pounds sterling (GBP) was excessive and it substituted
2. John v. M.G.N. Ltd. 
2 All ER 35
76. The Court of
Appeal held that in assessing compensatory damages in a defamation
case a jury could in future properly be referred by way of comparison
to the conventional compensation scales in personal injury cases
and to previous libel awards made or approved by the Court of Appeal.
As the Master of the Rolls pointed out:
"Judges, as they were bound to do, confined themselves
to broad directions of general principle, coupled with injunctions
to the jury to be reasonable. But they gave no guidance on what
might be thought reasonable or unreasonable, and it is not altogether surprising
that juries lacked an instinctive sense of where to pitch their
awards. They were in the position of sheep loosed on an unfenced
common, with no shepherd."
77. While the ultimate
decision (subject to appeal) was that of the jury which was not
bound by submissions made to them, there was no reason why the judge
or counsel should not indicate to the jury the level of award which
they considered appropriate:
"The plaintiff will not wish the jury to think
that his main object is to make money rather than clear his name.
The defendant will not wish to add insult to injury by underrating
the seriousness of the libel. So we think the figures suggested
by responsible counsel are likely to reflect the upper and lower
bounds of a realistic bracket. The jury must, of course, make up
their own mind and must be directed to do so. They will not be bound
by the submission of counsel or the indication of the judge. If
the jury make an award outside the upper or lower bounds of any
bracket indicated and such award is the subject of appeal, real
weight must be given to the possibility that their judgment is to
be preferred to that of the judge.
The modest but important changes of practice described
above would not in our view undermine the enduring constitutional position
of the libel jury. Historically, the significance of the libel jury
has lain not in their role of assessing damages, but in their role
of deciding whether the publication complained of is a libel or
not. The changes which we favour will, in our opinion, buttress the
constitutional role of the libel jury by rendering their proceedings
more rational and so more acceptable to public opinion. ...
The [Convention] is not a free standing source of law
in the United Kingdom. But there is, as already pointed out, no
conflict or discrepancy between Art. 10 and the common law. We regard
Art. 10 as reinforcing and buttressing the conclusions we have reached
and set out above. We reach those conclusions independently of the
[Convention], however, and would reach them even if the convention
did not exist."
78. As to the factors
of which one should take account in assessing the damages to be
awarded, the Court of Appeal found:
"The successful plaintiff in a defamation action
is entitled to recover, as general compensatory damages, such sum
as will compensate him for the wrong he has suffered. That sum must
compensate him for the damage to his reputation, vindicate his good name
and take account of the distress, hurt and humiliation which the
defamatory publication has caused. In assessing the appropriate
damages for injury to reputation, the most important factor is the
gravity of the libel ... The extent of publication is also very relevant
... It is well established that compensatory damages may and should
compensate for additional injury caused to the plaintiff's feelings
by the defendant's conduct of the action as when he persists in
an unfounded assertion that the publication was true, or refuses
to apologise, or cross-examines the plaintiff in a wounding or insulting
III. THIRD PARTY SUBMISSIONS
79. All third parties
endorsed the applicants' submissions.
A. National Newspapers of Ireland
80. The NNI is
the representative body for Irish national newspapers including
a number of newspapers owned by the applicants. It considered, inter alia, that the decision of the
Supreme Court in the present case did not accord with the above-cited Tolstoy Miloslavsky judgment. The
NNI endorsed the recommendations of the LRC and of the LAG (paragraphs
71-72 above) about the parties and the trial judge addressing the
jury directly on the level of damages. More generally, it maintained
that many other aspects of defamation law were in urgent need of
reform so that that the freedom of speech of journalists in Ireland
was unreasonably inhibited.
B. Associated Newspapers (Ireland)
81. This company
is part of a larger media group known as Associated Newspapers Limited
based in the United Kingdom and it publishes an Irish national Sunday
newspaper. It submitted, inter alia,
that various aspects of Irish defamation law acted as a chilling
effect on the press' freedom of expression including the Supreme
Court's inability to substitute its own award together with the
associated inability to inform the jury on a re-trial of the Supreme
Court's views and the connected costs impact of an appeal.
C. The Irish Times Limited
82. The Irish Times
Limited is the owner and publisher of the "Irish Times" newspaper
one of Ireland's leading daily newspapers which is also distributed
in the United Kingdom and in Europe. It has defended many defamation
actions, was particularly concerned about the restrictions on instructing
a jury on damages and it endorsed the work and recommendations of
D. Thomas Crosbie Holdings Limited
("TCH") and Examiner Publications (Cork) Limited
83. The subsidiaries
of these holding companies publish, print and distribute national
and regional newspapers in Ireland and the United Kingdom. EPC was
itself subjected to effectively the same treatment as the present
applicants (the above-cited Hill case).
The failure to implement the proposals of the LAC and LAG was prejudicial
to the Irish media.
E. MGN Ltd
84. MGN Ltd publishes
many Irish daily and weekly newspapers. As a former defendant in
libel proceedings in Ireland (O'Brien v.
M.G.N. Ltd case, see paragraphs 54-63 above), it regretted
that the Supreme Court did not substitute its own award for that
of the jury: sending a case back for re-trial was costly and, because
the second jury was not informed of the appeal court's view, the risk
of disproportionality remained.
F. News group Newspapers Limited
and News International plc
85. These companies
publish numerous weekly and daily papers in Ireland and in the United
Kingdom. They underlined their support for this Court's judgment
in the above-cited case of Tolstoy Miloslavsky and
for the Court of Appeal in the above-cited Ranzen and Johnv. M.G.N. cases.
G. National Union of Journalists
86. The NUJ is
the largest union of journalists in the world and its Irish branch
represents (97% (about 3000) of Irish journalists). It considered
that Irish libel laws prevented journalists from carrying out their
duties and denied access to fair and efficient proceedings to protect
one's reputation. As to the lack of guidance to juries, it considered
that the size and arbitrary nature of jury awards were powerful
chilling factors on the press.
ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION
87. The applicants
complained that, given the exceptional damages' award and the absence
of adequate safeguards against disproportionate awards, their rights
under Article 10 were violated. They considered their case indistinguishable
from the above-cited Tolstoy Miloslavsky case.
88. Article 10,
in so far as relevant, reads as follows:
"1. Everyone has the right to freedom of expression.
This right shall include freedom to hold opinions and to receive
and impart information and ideas without interference by public
authority and regardless of frontiers. ...
2. The exercise of these freedoms, since it carries with
it duties and responsibilities, may be subject to such formalities,
conditions, restrictions or penalties as are prescribed by law and
are necessary in a democratic society, in the interests of ... for
the protection of the reputation or rights of others ..."
A. The parties' submissions
1. General observations
89. The Government
objected to the applicants' overall approach. A balance had to be
struck between protecting expression and reputations so that, once
there was a finding of defamation, the weight of Convention support
shifted to the protection of reputation. This latter right, guaranteed
by Article 8, had been infringed to a devastating extent in the
present case. The only remaining Article 10 issue was to ensure
that the damages' award was proportionate to the harm done to that
reputation, bearing in mind any chilling effect on further similar
publications. The applicants' approach, on the other hand, reduced
the Convention issues and the Tolstoy Miloslavsky judgment
to simplistic mathematical formulae as if the only right at issue
was freedom of expression without regard for the underlying values
and contextual complexities of the matter including the power of
the media, the devastating effects of defamatory allegations on
reputations, the consequent destruction of the "human potential" which
Article 10 supports and the respective roles of the domestic and
The Government considered "indirect and remote" any
possibility of a chilling effect on political commentary by the
press by the present or other damages awards. No such causal link
had been demonstrated in the present case and, in any event, awards in
libel cases were inherently and unavoidably uncertain. The Government
further criticised the applicants and third parties' comments on
numerous aspects of Irish libel law not relevant to the present
90. The applicants
maintained that the simple fact was that their case was not distinguishable
from that of Tolstoy Miloslavsky. The
Government was wrong to suggest that the applicants might have lost
their Article 10 rights following a finding of defamation: the Court
was just as concerned about the chilling effect on the press (particularly
on its political expression) of excessive penalties, an effect the
applicants considered significant in the present case.
2. The size of the award
91. The Government
considered that the present damages' award could not violate Article
10 of the Convention.
92. Their primary
submission was that it must be shown that the award was disproportionate
to the harm to reputation before the Court had to examine the domestic
safeguards against disproportionate awards. This required an assessment
of injury against certain criteria (the gravity of the libel, Mr
de Rossa's position as an elected politician, the timing of the
libel, the circulation of the libel, the conduct of the first applicant
and the personal impact on Mr de Rossa). Since the award was clearly
proportionate to the devastating harm inflicted, it was not necessary
to examine the safeguards.
93. In any event,
the applicants' comparative approach was flawed. It did not compare
like with like (it did not make sense to compare awards in the same
jurisdiction and they should have referred to previous jury awards
and not those approved by the Supreme Court). It was arbitrary (a
large award delivered between the judgments of the Supreme Court
and of this Court would have undermined the comparative approach).
It was perilous since it was asking this Court to fix the cap on
damages' awards in Irish libel cases and to do so lower than in
other jurisdictions. It also amounted to second-guessing a domestic
appeal court's finding of proportionality despite the margin of
appreciation accorded to the national authorities in making such
assessments and the subsidiary nature of the Convention system.
94. Even applying
the applicants' defective test, the present award was not exceptionally
high. It was one sixth of the award in the Tolstoy
Miloslavsky case and the highest prior libel award
in Ireland was not IR£90,000 (the above-cited McDonagh case) -
two previous jury awards were higher (IR£275,000 in Denny v. Sunday News, High Court, Irish Times of
14 November 1992, unreported, and
IR£515,000 in the above-cited Dawson case),
although the Government did accept that no defence or appeal had been
filed in the Denny case and
that the Supreme Court in the Dawson case
had set aside the second award.
95. For these reasons,
the Government considered that it was not necessary to examine the
domestic legal safeguards against disproportionate awards.
96. The applicants
clarified that they were arguing that the award was of such significance
that one could not conclude as to its proportionality without first
examining the domestic safeguards against disproportionate awards.
The Government's primary argument, that safeguards were examined
after the award had been found to be disproportionate, misinterpreted
the Court's approach in Tolstoy Miloslavsky.
If the Court in that case found the award to be disproportionate
at the outset, there would have been no need to go further and examine
the domestic safeguards. In fact the jury award in Tolstoy Miloslavsky was sufficiently significant
as to trigger a review of the adequacy of the safeguards against
disproportionate awards. The more exceptional the award, the more
scrutiny of safeguards required.
97. As to how the
significance of the award was to be assessed, the applicants maintained
that a two-fold test was required: did the facts support a "relatively
large award" and even if so (as was accepted in the present
case), was the award exceptional. In this latter respect, it was
over three times any award previously upheld by the Supreme Court
(the McDonagh case), the awards in
the Denny and Dawson being irrelevant for the precise
reasons outlined above by the Government. The Supreme Court accepted
that the present award went to the "top of the bracket" and,
in a later case, that a much lower award was in the "highest
bracket of damages appropriate in a libel case" comparable
to the general damages awarded in "the most serious cases
of paraplegic or quadriplegic injuries" (O'Brien v. M.G.N, paragraphs 54-63
2. Safeguards against disproportionate
98. The Government
argued that the domestic safeguards against disproportionate awards
Most importantly, they underlined that the Irish Constitution
expressly protected freedom of expression and one's reputation. Central
to striking a balance between these two rights was a fundamental
notion of constitutional law, namely that of proportionality. It
was a notion which was equivalent to the Convention concept: the
applicants disagreement with this amounted to saying that the Supreme
Court was mistaken or that it did not mean what it said. It was
a notion which was an important aspect of Irish libel law and a
significant safeguard at first (jury) and second instance (the Supreme
Court) in libel cases. It was consequently a key factor distinguishing
the present case from the Tolstoy Miloslavsky case.
The Government also emphasised that its choice of how to provide
adequate safeguards fell within the State's margin of appreciation.
99. The applicants
reiterated that, compared to the Tolstoy
Miloslavsky case, the present jury had even less guidance
and the Supreme Court did not exercise a more stringent review.
Accordingly, if the law in that case violated Article 10 of the
Convention, so did the domestic law at issue in the present case.
They accepted that a State enjoyed a margin of appreciation as regards
how it complied with Article 10 of the Convention: however, it was
much reduced given the press and political speech context. In addition,
while that margin meant that a State could choose how to develop
the safeguards and, notably, could develop them differently to the
Court of Appeal in the above-described Rantzen and John v. M.G.N. cases, this did not
change the fact that, as domestic law stood at the relevant time,
it was in violation of Article 10 of the Convention.
(b) First instance
100. The Government
underlined the cherished nature of the principle that lay persons
were considered the most effective arbiters when deciding, not only
what was defamatory, but the appropriate level of compensation.
The applicants were effectively asking the Court to assume that
jurors were unable to value reputation in accordance with certain
factors outlined to them in order to arrive at a rational and proportionate
decision without further guidance. Not only was that an inappropriate
assumption, but the calculation made by a jury attracted an even
wider margin of appreciation than that completed by, for example,
a judge. In this latter respect, they explained why framing and
applying defamation laws in a modern democracy was a complex exercise
requiring a delicate calibration of a variety of interests. The
domestic authorities were therefore clearly better placed to judge
how the most appropriate balance could be struck in a given situation
and, further, an authority comprising a group of informed, reasonable
and conscientious citizens (a jury) would be best placed to reach
that balance given their direct and continuous contact with the
realities of life within their countries.
Different methods of guiding jurors in other jurisdictions
were not necessarily the only means of achieving a proportionate
jury award. The Supreme Court was entitled to consider that allowing
comparative figures to be supplied to jurors would lead to them being
buried in figures (from the parties and the trial judge, which they
would assimilate with difficulty and would lead to confusion) and
would therefore be an unjustifiable invasion in their province.
Personal injury awards were not (as the Supreme Court also found)
useful given the unique nature of the libel action and awards in
other libel cases would not assist as each libel case fell to be
considered on its own facts.
101. In any event,
the present jurors were given greater guidance than those in the Tolstoy Miloslavsky case. They were
advised in accordance with the constitutional principle of proportionality:
if the word "proportionate" was not used, they
were told repeatedly (and to a far greater extent than in the Tolstoy Miloslavsky case) to tailor
the award to the harm to reputation. The comments of the present
trial judge were more moderate than in the Tolstoy
Miloslavsky case. Even though the guidance did not outline
awards in prior cases, the jury was advised of a hierarchy in the
gravity of libels and given an example of a relatively minor libel
of someone of similar standing to the present plaintiff. The trial
judge also explained to the jury relevant factors to take into account
in assessing damages.
102. The applicants
argued that the guidance to the jury was extremely limited. The
jury was advised: to be reasonable and fair; of the purpose of awarding
damages; and to compare the defamation with other possible defamations.
No figures were opened to it so no awards in other libel or personal
injuries' cases could be mentioned. The Chief Justice even accepted
that the present trial judge was restricted by law to giving the
jury "guidance of so general a nature as to be meaningless".
Moreover, a system which deprived the first instance determining
body of the core relevant information (the comparative figures)
could never provide adequate and effective safeguards against disproportionate
awards. Furthermore, that such comparative figures were used on appeal
did not resolve the problem since the threshold at which the appellate
court would set aside a first instance award was extremely high.
103. There were
two important differences between the directions given to the present
jury and to the jury in Tolstoy Miloslavsky.
The first was not relevant - it was simply of no assistance to a
jury to tell it that it should assess a particular defamation in the
context of other defamations without giving the jury any information
about the awards in the other cases. Indeed, the Chief Justice pointed
out that a jury must base its assessment entirely on the facts found
by them, that departure from this principle would lead to utter
confusion and that figures awarded in other cases based on different
facts were not matters which the jury was, or should be, entitled
to take into account. The second difference demonstrated that the
guidance to the Tolstoy Miloslavsky jury was,
in fact, stronger than in the present case. The trial judge in the
former case was able to mention the ability of money to purchase
particular items (a house) whereas no such guidance was, or could
have been, given under Irish law by the present trial judge.
104. While it was
not for the applicants to propose solutions (the State could examine
the possibilities in accordance with its margin of appreciation
if the Court accepted that the absence of guidelines was a breach
of Article 10), they considered (for the reasons outlined by Mrs
Justice Denham - paragraphs 38-40 above) that a jury could be usefully
given comparative figures from other libel and personal injury cases.
(c) Second Instance
105. The Government
maintained that the proportionality test applied on appeal was stricter
than the "irrationality" test applied on appeal
in Tolstoy Miloslavsky and
that the applicants were simply incorrect in arguing any differently.
Indeed the English Courts had, since incorporation of the Convention,
recognised the limitations of the "irrationality" test
when compared to the Convention proportionality test. The enhanced
control resulting from the application of such a test was evidenced
by the depth of the Supreme Court's review in the present case.
The fact that the present jury award was upheld did not, of course,
mean that the appellate test of proportionality was inadequate and
the Government considered the overturning of later substantial awards
as demonstrative of the fact that the appeal review was an effective
safeguard (the above-noted cases of Dawson
and Dawson v. the Irish Brokers Association and O'Brien v. M.G.N.).
106. The applicants
accepted that the Supreme Court tested the "proportionality" of
the award but pointed out that its measure of "proportionality" was
far below that of the Convention.
In particular, there was no difference between the proportionality
test of the Supreme Court and the pre-Rantzen"irrationality" test.
The difference between the pre-Rantzen test
(considered insufficient in Tolstoy Miloslavsky)
and the post-Rantzen one (later approved
in the Tolstoy Miloslavsky judgment)
was the development towards a test of "necessity",
a concept which mirrored the Convention notion of proportionality
but not the Irish Supreme Court's notion. However, the Supreme Court
expressly rejected the Rantzen "necessity" test,
it stated that it could only set aside an award if it was satisfied
that in all the circumstances the award was so disproportionate
to the injury suffered and wrong done that no reasonable jury would
have made such an award and that was precisely the formulation considered
insufficient by the Court in Tolstoy Miloslavsky.
This was not a distinction without a difference: an award could
be considered reasonable but not "necessary" to
107. In any event,
the applicants considered that an appellate review (even applying
the correct "necessity" test") could
not, of itself, constitute a sufficient safeguard against disproportionate
awards. In the first place, the cherished "sanctity" of
jury awards militated against and discouraged disturbing such awards
on appeal. Secondly, if such reverence was to be accorded to a jury award,
then that jury process must itself respect Article 10 of the Convention.
Thirdly, it would be destructive of a defendant's Article 10 rights
to be obliged to risk the high costs of an appeal in order to defend
those rights: this was particularly so when the net result of a
successful appeal is simply a reference back to the High Court where
the whole flawed process would start again without, moreover, any
information about the original jury award or of the appeal court's
108. The fact that
other awards had been set aside did not prove, in the applicants'
opinion, that the control exercised by the Supreme Court was adequate
in the present case, not least because the Government were able
to refer to only two such cases (the above-cited cases of Dawson and Dawson v. the Irish Brokers Association and O'Brien v. M.G.N.).
B. The Court's assessment
109. The parties
did not dispute that the award of damages was an interference with
the applicants' freedom of expression, that it pursued the legitimate
aim of protecting Mr de Rossa's reputation or that the interference
was "prescribed by law".
The Court does not see any reason to disagree. It considers
that the award constituted an interference with the second applicant's
Article 10 rights (it published the relevant newspaper article and
paid the damages' award) and with those of the first applicant (the
parent company was the named defendant in the domestic proceedings).
It further considers that that interference was "prescribed
by law" (the above-cited Tolstoy
Miloslavsky case, §§ 38-44) and pursued the legitimate
aim of protecting the "reputation and the rights of others".
110. The parties
also agreed, and indeed it was made clear in the Tolstoy Miloslavsky judgment (at §
49), that an award of damages following a finding of libel must
be "necessary in a democratic society" so that
it must bear a reasonable relationship of proportionality to the
injury to reputation suffered. The jurisprudence does not provide
for a shifting protection of the rights involved once libel is established
(as suggested by the Government at paragraph 90 above): rather the
Court assesses whether the compensatory response to a libel was
proportionate one by finding where the appropriate balance lies
between the conflicting Convention rights involved (Von Hannover v. Germany, no. 59320/00,
§ 58, ECHR 2004-...).
111. However, the
parties diverged on the question of whether the present award was
proportionate. The applicants considered the award to be of such
significance that the Court could not conclude as to its proportionality
without examining the adequacy and effectiveness of the domestic
safeguards against disproportionate awards and maintained that their
application was indistinguishable from that of Tolstoy
Miloslavsky. The Government were of the view that the
issues raised were more complex than a mechanical application of
that judgment and that, in any event, the present case was clearly
distinguishable from the Tolstoy Miloslavsky case.
112. The Court
considers that the Tolstoy Miloslavsky judgment
must be its point of departure in examining this case. That judgment
reads, in so far as relevant, as follows:
"48. The Court recalls at the outset that its
review is confined to the award as it was assessed by the jury,
in the circumstances of judicial control existing at the time, and
does not extend to the jury's finding of libel. It follows that
its assessment of the facts is even more circumscribed than would
have been the case had the complaint also concerned the latter.
In this connection, it should also be observed that perceptions
as to what would be an appropriate response by society to speech
which does not or is not claimed to enjoy the protection of Article
10 of the Convention may differ greatly from one Contracting State
to another. The competent national authorities are better placed
than the European Court to assess the matter and should therefore
enjoy a wide margin of appreciation in this respect.
49. On the other hand, the fact that the applicant declined
to accept Lord Aldington's offer to settle for a lesser sum ...
does not diminish the United Kingdom's responsibility under the
Convention in respect of the contested damages award.
However, the Court takes note of the fact that the applicant
himself and his counsel accepted that if the jury were to find libel, it
would have to make a very substantial award of damages ... . While
this is an important element to be borne in mind it does not mean
that the jury was free to make any award it saw fit since, under
the Convention, an award of damages for defamation must bear a reasonable
relationship of proportionality to the injury to reputation suffered.
The jury had been directed not to punish the applicant
but only to award an amount that would compensate the non-pecuniary damage
to Lord Aldington ... The sum awarded was three times the size of
the highest libel award previously made in England ... and no comparable
award has been made since. An award of the present size must be
particularly open to question where the substantive national law
applicable at the time fails itself to provide a requirement of
50. In this regard it should be noted that, at the material
time, the national law allowed a great latitude to the jury. The
Court of Appeal could not set aside an award simply on the grounds
that it was excessive but only if the award was so unreasonable that
it could not have been made by sensible people and must have been
arrived at capriciously, unconscionably or irrationally ...
In a more recent case, Rantzen v.
[M.G.N.], the Court of Appeal
itself observed that to grant an almost limitless discretion to
a jury failed to provide a satisfactory measurement for deciding
what was "necessary in a democratic society" for
the purposes of Article 10 of the Convention. It noted that the
common law - if properly understood - required the courts to subject
large awards of damages to a more searching scrutiny than had been
As to what guidance the judge could give to the jury,
the Court of Appeal stated that it was to be hoped that in the course
of time a series of decisions of the Court of Appeal, taken under
section 8 of the Courts and Legal Services Act 1990, would establish some
standards as to what would be "proper" awards.
In the meantime the jury should be invited to consider the purchasing
power of any award which they might make and to ensure that any
award they made was proportionate to the damage which the plaintiff had
suffered and was a sum which it was necessary to award him to provide
adequate compensation and to re-establish his reputation ...
The Court cannot but endorse the above observations by
the Court of Appeal to the effect that the scope of judicial control,
at the trial and on appeal, at the time of the applicant's case
did not offer adequate and effective safeguards against a disproportionately
51. Accordingly, having regard to the size of the award
in the applicant's case in conjunction with the lack of adequate
and effective safeguards at the relevant time against a disproportionately
large award, the Court finds that there has been a violation of
the applicant's rights under Article 10 of the Convention. ...
55. In sum, the Court concludes that the award was "prescribed
by law" but was not "necessary in a democratic society" as there
was not, having regard to its size in conjunction with the state
of national law at the relevant time, the assurance of a reasonable
relationship of proportionality to the legitimate aim pursued. Accordingly,
on the latter point, there has been a violation of Article 10."
the essential question to be answered in the present case is whether,
having regard to the size of the present award, there were adequate
and effective domestic safeguards, at first instance and on appeal,
against disproportionate awards which assured a reasonable relationship
of proportionality between the award and the injury to reputation.
114. This examination,
with due regard to relevant Irish domestic law and practice, will
necessarily determine the well-foundedness of the Government's general
argument (see paragraph 89 above) that, inter
alia, the applicants' reliance on the Tolstoy Miloslavsky judgment was incorrect.
In addition, it is not necessary to rule on whether the present
damages' award had, as a matter of fact, a chilling effect on the
press: as matter of principle, unpredictably large damages' awards
in libel cases are considered capable of having such an effect and
therefore require the most careful scrutiny (Bladet
Tromsø and Stensaas v. Norway [GC], no. 21980/93, §
64, ECHR 1999-III). Accordingly, and even if, as the Government
argued, the assessment of damages in libel cases is inherently complex
and uncertain, any such uncertainty must to be kept to a minimum.
1. The award of damages
115. The Court
considers that a general finding that an award of damages is "unusual" is
sufficient to prompt its review of the adequacy and effectiveness
of the domestic safeguards against disproportionate awards.
The depth of that review does not depend, as the applicants
suggested (paragraph 96 above), on how unusual the award is: once
a review is triggered as above, the Court will apply the Convention
provisions and jurisprudence equivalently in each case. Neither
does it accept the Government's argument that an award must be found
disproportionate before a safeguards' review becomes relevant: the Tolstoy Miloslavsky case clearly shows
that the former conclusion depends on the latter review.
116. The Court
has assessed the present damages' award in the same manner as it
did in its Tolsoy Miloslavsky judgment: while
the defamation was undoubtedly serious, the present award was three
times more than the highest libel award ever previously approved
by the Supreme Court and the Government have not pointed to a "comparable
award" made since then (the Government's submissions at
paragraphs 93-94 above and Tolstoy Miloslavsky judgment,
§ 49). The seriousness of the libel has therefore only some relevance
to this general assessment: Count Tolstoy
Miloslavsky accepted that any award against him would be
substantial and, while that was considered to be "an important
element to be borne in mind", it did not prevent the Court
in that case from reviewing the domestic safeguards.
The Court does not consider useful the Government's direct
mathematical comparison of the awards in the present and in the Tolstoy Miloslavsky cases in the light
of the case- and country-specific matters which influence jury awards
in different jurisdictions and in different cases (Tolstoy Miloslavsky, at § 48). In
addition, since the finding of unusualness is general and merely
acts as a trigger to further examination as described above, it
could not reasonably be interpreted (as the Government suggested,
see paragraph 93) as the fixing by this Court of a cap on damages
awards in Irish libel cases or, still less, as this Court second-guessing a
domestic finding of proportionality.
117. However, it
is true that, prior to the Supreme Court's judgment in the present
case, Irish juries had already made relatively similar awards in
libel cases (IR275,000 in Denny v. Sunday
News andIR£250,000 O'Brien v. M.G.N. Ltd, both cited
above) and, indeed, a significantly higher award (IR515,000 in Dawson and Dawson, cited above). While
the Denny case was not defended or
appealed and the awards in the Dawson and O'Brien cases were subsequently set
aside by the Supreme Court, this domestic case-law, nonetheless,
indicates that the award against the first applicant was not as
unusual as that at issue in Tolstoy Miloslavsky:
in that case the award was three times the size of the highest libel
award ever previously made in England and it had not yet been matched
when this Court examined that case.
118. While this
constitutes a relevant point of distinction between the present
and the Tolstoy Miloslavsky cases,
the Court considers that the present jury award remained sufficiently
unusual as to require this Court's review of the adequacy and effectiveness
of the domestic safeguards against disproportionate awards.
2. Guidance to juries at first
119. The parties
disputed whether or not the required safeguards imposed on trial
judges (and the parties to proceedings) the necessity to provide
further and more specific guidance to juries on the level of the
damages to be awarded.
120. The Court
recalls that the main purpose of the Convention is to lay down certain
international standards to be observed by States but that this does
not mean that absolute uniformity is required. A State remains free
to choose the measures which it considers best adapted to address
domestically the Convention matter at issue (the Belgian Linguistic case (preliminary
objection), judgment of 9 February 1967, Series A no. 5, p. 19 and Sunday Times v. the United Kingdom (no. 1),
judgment of 26 April 1979, Series A no. 30, § 59). Accordingly,
while in Tolstoy Miloslavsky the
Court endorsed the developments in English law towards giving such
further guidance in the Ranzen and St John cases (both cited above),
this does not mean that it considered the Rantzen route
as the only means of safeguarding respondents against disproportionate
awards. The important question is whether, having regard to the
entire proceedings, the protection against disproportionate awards
121. The present
trial judge directed the jury that damages had to be confined to
such sum of money as would "fairly and reasonably" compensate
the injured party for his injured feelings (including for any hurt,
anxiety, trouble and bother to which the injured party had been
put) and for any diminution in his standing among right-thinking
people. The assessment was to be made entirely on the facts established
by the jury and relevant considerations were to include the nature
of the libel, the standing of the injured party, the extent of the
publication and the conduct of the newspapers at all stages of the
case. The trial judge also gave the jury an example of a case (without
naming it) of a relatively minor defamation to allow the jury to
fix the present defamatory article in the overall scale of seriousness
of defamatory remarks. He went on to indicate that he would not
therefore have been surprised if the present jury would go to the
opposite (higher) end of the scale: indeed, the trial judge clearly
indicated that any damages awarded would be "substantial".
122. While the
traditional limitations on providing more specific guidance to juries
on the level of the award were similar in the present and Tolstoy Miloslavsky cases, the Court
has approached with some caution a comparison of the relative merits
of the actual jury directions given in those cases since such directions
are inevitably framed to respond to specific issues arising at the different
It is also true that Irish law (paragraphs 23-24 above)
required damages to be fair and reasonable in the circumstances
and not to be disproportionate to the injury to reputation suffered.
However, even if that notion of proportionality enhanced the principles
of compensatory damages at issue in the Tolstoy
Miloslavsky case (paragraphs 128-129 below), the present
trial judge did not expressly remit this notion to the jury as he
could have. It is not therefore possible to rely, as the Government
did, on this element of Irish law to distinguish the present jury
guidance to that given in the Tolstoy Miloslavsky case.
123. There are,
however, points of distinction between the directions given to the
juries in the Tolstoy Miloslavsky and
the present cases. In the former case, the jury was asked to consider
the purchasing power of money and reference was made to the price
of a house. Nonetheless, that direction remained a somewhat imprecise
and obvious one rather than constituting any form of indication
as to the level of damages it could award in that case. Of some
note was the reference by the trial judge on two occasions in his
charge to the jury to the use by the defendant himself of the word "enormous" to
describe the possible level of damages. However, he emphasised that
that was a matter for the jurors. In contrast, in the present case,
the trial judge gave the jury two concrete indications, not provided
in the Tolstoy Miloslavsky case,
as to the level of any damages to be awarded. He provided the example
of a relatively minor defamatory comment to allow the jury in the
present case to assess the relative seriousness of the defamatory
article published by the second applicant. He then followed up that
example with a clear direction to the jury that, if it was to award
damages, they would have to be substantial.
124. The Court
considers therefore that the trial judge's directions in the present
case can be considered to have given somewhat more specific guidance
to the jury than those examined in the Tolstoy
3. Review at second instance
125. In its Tolstoy Miloslavsky judgment, the
Court found inadequate a review which examined whether the award
was "so unreasonable that it could not have been made by
sensible people and must have been arrived at capriciously, unconscionably or
irrationally". That judgment also endorsed the Rantzen appellate test (whether "a
reasonable jury would have thought that this award was necessary
to compensate the plaintiff and to re-establish his reputation"-
see paragraph 73 above).
126. The general
principles of compensatory damages in Irish libel cases are noted
at paragraph 122 above. The meaning of proportionality was also
developed in some detail by the Chief Justice in the present case:
he pointed out that finding a due balance between conflicting constitutional
rights (in the present case those guaranteed by Articles 40(3)(2)
- reputation - and 40(6)(1) - expression - of the Constitution)
relied on the notion of proportionality in Irish law, which concept
mirrored that of the Convention (see also certain Irish constitutional
cases applying the notion of proportionality at paragraphs 67-70
However, the Chief Justice also explained in some detail
why the depth of appellate review of awards, for compliance with those
principles of compensatory damage, was limited. Having underlined
the "unusual and emphatic sanctity" of jury awards
so that Irish appellate courts had been "extremely slow" to
interfere with such awards, he expressly disagreed with the above-outlined Rantzen appellate test because he
considered that its application would remove the sanctity of jury
awards and would mean that an appellate court would no longer give "real
weight" to the possibility that the jurors' judgment was
to be preferred to that of the judge. Accordingly, the Chief Justice
described the level of appellate control of jury libel awards as
follows (see paragraphs 28-30 above):
"..., while awards made by a jury must, on appeal
be subject to scrutiny by the appellate court, that Court is only
entitled to set aside an award if it is satisfied that in all the
circumstances, the award is so disproportionate to the injury suffered
and wrong done that no reasonable jury would have made such an award."
127. The applicants
had two essential arguments in this respect.
128. They argued,
in the first place, that this test was, in substance, no stricter
than the inadequate appellate review in the Tolstoy
Miloslavsky case. The Court considers this incorrect
and is of the view that the appellate review is one of the main
points of distinction between the two cases.
It is true that the Chief Justice stated that the depth of appellate review in Irish
law could not be as intrusive as that developed in the Rantzen case (paragraph 126 immediately
above) cited with approval in the Tolstoy
Miloslavsky judgment (at § 50). It nevertheless remains
that the nature of the Supreme
Court's review was more robust than that at issue in the Tolstoy Miloslavsky judgment because
of the requirement in Irish domestic law that jury awards in libel
cases be proportionate within the meaning described at paragraphs
122-126 above. It was the absence of this proportionality requirement
in English law which meant that the libel award in the Tolstoy Miloslavsky case was considered
to be "particularly open to question" (the last
sentence of § 49 of that judgment).
129. That this
requirement of proportionality distinguishes the appellate review
at issue in the present and Tolstoy Miloslavsky cases
is evident from the actual review conducted by the Supreme Court
in the present case.
The Supreme Court (see paragraphs 31-36 above) took into
account a number of relevant factors, including the gravity of the libel,
the effect on Mr de Rossa (a leader of a political party) and on
his negotiations to form a government at the time of publication, the
extent of the publication, the conduct of the first applicant newspaper
and the consequent necessity for Mr de Rossa to endure three long
and difficult trials. Having assessed these factors, it concluded
that the jury would have been justified in going to the top of the
bracket and awarding as damages the largest sum that could fairly
be regarded as compensation. While IR£300,000 was a substantial
sum, it noted that the libel was serious and grave, involving an
imputation that Mr de Rossa was involved in or tolerated serious
crime and personally supported anti-Semitism and violent Communist
oppression. "Bearing in mind that a fundamental principle
of the law of compensatory damages is that the award must always
be reasonable and fair and bear a due correspondence with the injury
suffered and not be disproportionate thereto", the Supreme
Court was not satisfied that the present jury award went beyond
what a reasonable jury applying the law to all the relevant considerations
could reasonably have awarded and considered it "not disproportionate
to the injury suffered by the Respondent."
130. While the
Court has noted the comments of Mr Justice Geoghegan (partly dissenting)
in the above-cited O'Brien v. MGN Ltd case
concerning the "diffidence" with which an appeal
review of a jury libel award is conducted (see paragraphs 59-62
above), that judge endorsed the principles of review outlined by
the Supreme Court in the present case which principles led, in fact,
to the jury award being quashed in the O'Brien case.
the applicants considered this appellate review incapable of remedying
the "defects" (insufficient guidelines) at first
instance for the following reasons. They maintained that the review
could not operate properly once all relevant information had not
been opened to the first instance decision-maker; they underlined
the heavy costs' implications of relying on an appeal to obtain
an informed view on damages; and they pointed out (along with certain
third parties and the LAG) that, even if that appeal was successful,
the Supreme Court could not substitute its own award but rather
sent cases back for re-trial on damages before a new jury which
was not informed of the appellate intervention.
However, the fact that the present jury was not given
such figures clearly did not prevent the Supreme Court from carrying
out its own assessment of the proportionality of the award. Reimbursement
of legal costs on appeal can be claimed by the successful party
and, as a general rule, costs follow the event (see, for example, Dawson and Dawson v. Ireland (dec.),
no. 21826/02, pp. 2 and 12, 8 July 2004). Whether or not this re-trial
process could be considered unnecessarily cumbersome as argued (see,
for example, the above-cited Dawson case),
the present applicants would only have been relevantly affected
by this if there had been a finding by the Supreme Court in their
4. The Court's conclusion
having regard to the particular circumstances of the present case,
notably the measure of appellate control, and the margin of appreciation
accorded to a State in this context, the Court does not find that
it has been demonstrated that there were ineffective or inadequate
safeguards against a disproportionate award of the jury in the present
There has therefore been no violation of Article 10 of
FOR THESE REASONS, THE COURT
Holds by 6 votes
to 1 that there has been no violation of Article 10 of the Convention.
Done in English, and notified in writing on 16 June 2005,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
In accordance with Article 45 § 2 of the Convention and
Rule 74 § 2 of the Rules of Court, the following dissenting opinion
of Mr Cabral Barreto is annexed to this judgment.
DISSENTING OPINION OF JUDGE CABRAL BARRETO
To my regret, I cannot concur with the majority.
1. Freedom of expression
constitutes one of the essential foundations of a democratic society
and one of the basic conditions for its progress and for each individual's
self-fulfilment. Subject to paragraph 2 of Article 10, it is applicable
not only to "information" or "ideas" that
are favourably received or regarded as inoffensive or as a matter
of indifference, but also to those that offend, shock or disturb.
These principles are of particular importance with regard
to the press. While it must not overstep the bounds set, inter alia, for "the protection
of the reputation of others", its task is nevertheless
to impart information and ideas on political issues and on other matters
of general interest.
As to the limits of acceptable criticism, they are wider
with regard to a politician acting in his public capacity than in
relation to a private individual.
A politician inevitably and knowingly lays himself open
to close scrutiny of his every word and deed by both journalists
and the public at large, and he must display a greater degree of
tolerance, especially when he himself makes public statements that
are susceptible of criticism.
Determining whether the interference in question was "necessary
in a democratic society" requires the Court to establish
whether it corresponded to a "pressing social need",
whether it was proportionate to the legitimate aim pursued and whether
the reasons given by the national authorities to justify it are
relevant and sufficient (see Lopes Gomes
da Silva v. Portugal, no. 37698/97, § 30, ECHR 2000-X).
2. Above all, I
would emphasise that the present case clearly involved a political
debate on matters of general interest, an area in which restrictions
on the freedom of expression should be interpreted narrowly.
That said, it seems to me that the fundamental issue in
this case is whether the award of damages was proportionate to the legitimate
aim of protecting Mr de Rossa's reputation or rights.
The majority, however, attach too much importance to the
safeguards afforded by Irish law for reviewing domestic decisions (see
paragraph 114 of the judgment).
I am not disputing the value of these safeguards, but
that does not seem to me to be a sufficient reason for finding that
there has been no violation of Article 10.
The important aspect to my mind was, rather, not only
whether the safeguards functioned properly but also whether, despite the
margin of appreciation enjoyed by the domestic authorities, the
final decision was consistent with the principles set forth in our case-law.
Weighing up all the circumstances of the case, I came
to the conclusion that the amount of damages which the first applicant was
ordered to pay, notwithstanding the review of the award by the Supreme
Court, was so high that the reasonable relationship of proportionality
between the interference and the legitimate aim pursued was not
I therefore consider that there was a violation of Article
10 of the Convention.