“I DON’T believe that we are ever going to have first amendment protection like in the US,” lamented RTÉ’s director general Noel Curran to an Oireachtas committee last year.
We may, though, be getting a little closer to American style freedom of the press, if last week’s decision by our new Court of Appeal is anything to go by.
Curran was addressing the Oireachtas Committee on Transport and Communications about RTÉ’s financial settlement in the wake of the so-called Pantigate affair. RTÉ paid out €85,000 to five people over defamation claims that followed remarks made by entertainer and gay rights activist Panti Bliss on The Saturday Night Show.
Like many media organisations before and since, RTÉ were minded to settle rather than fight the defamation allegations. They also aired an apology, prompting hundreds of complaints, a Dáil debate and an address by MEP Paul Murphy at the European Parliament for doing so.
It was not a good day for freedom of the press.
Monday, October 19, was somewhat better when the Court of Appeal overturned a €900,000 damages award against the Sunday World which a judge described as “perverse”.
It concerned a case taken in the High Court in 2008 by Martin McDonagh, a member of the Travelling community, against the newspaper for calling him a ‘drug king.’ The appeal would normally have been heard by the Supreme Court but went to the new Court of Appeal instead. The unanimous decision of the three-judge court was to set aside the jury award.
In the judgement last Monday, the appeal court – comprising Mr Justice Peter Kelly, Ms Justice Mary Irvine and Mr Justice Gerard Hogan – unanimously allowed the appeal of the newspaper.
It found the allegation of drug dealing was substantiated and dismissed that part of his claim. However, it decided that there should be a re-trial in relation to a second allegation of loan sharking.
Delivering the decision of the court, Mr Justice Hogan said it was clear the jury verdict, so far as it concerned the drug dealing allegation, could not be allowed stand.
“Viewed objectively, the evidence overwhelmingly pointed to the conclusion the plaintiff [McDonagh] was, indeed, a drug dealer associated with the drugs seizure in Tubercurry,” he said.
If the allegation was correct, he said, the newspaper had a constitutional right to publish this, and that right could not be compromised by a jury verdict “which was, in essence, perverse”.
That is very strong language from the Bench. In the first instance, describing the jury’s decision as ‘perverse’ is unheard of, but, more importantly, explicit judicial recognition of a constitutional right to publish a well founded allegation is rare, to say the least.
NewsBrands Ireland, the voice of our newspaper industry, welcomed the decision but cautioned that it, once again, highlighted the inadequacies of our defamation laws and the urgent need for further reform, following such attempts in the 2009 Defamation Act.
It noted that the Sunday World article first appeared in 1999, which meant that the newspaper had been fighting the defamation case - in one form or another - for almost 16 years.
“Such a delay does not benefit either the plaintiff or the newspaper and reflects poorly on our legal system,” said NewsBrands Ireland, in a statement.
“Defamation law in Ireland presents a huge challenge to freedom of expression. The retention of the jury system creates delays and also a lack of certainty for publishers who have no way to ascertain the extent of their potential liability.
“Ireland is the only country in Europe where defamation actions are heard before a jury. In Britain, trials are held without a jury unless the court orders otherwise.” It also pointed out the disparity between awards for defamation and those given for personal injury.
“To put the case in perspective, the jury award of €900,000 to Mr McDonagh is a multiple of the level of awards in extremely serious personal injury cases,” said NewsBrands Ireland.
Such high jury awards are not uncommon in Ireland and the fact is that even a single a judgement involving hundreds of thousands of euro against a newspaper or other media organisation may be enough to force it to shut its doors, potentially putting hundreds of people out of work.
The original decision in the McDonagh case is a small proportion of that given to a businessman awarded €10 million in November 2010.
The award was made to Donal Kinsella, who sued his former employer, Kenmare Resources, over a press release it sent out concerning an incident where he had sleep-walked while on company business in Africa.
The amount of the award was so staggering that it prompted the judge to remark: “Correct me if I’m mistaken... but you have awarded compensatory damages of €9 million and aggravated damages of €1 million.” It was - and still is - the highest libel award in the history of the state. Counsel for the defendants, Kenmare Resources, described the total of €10m as “off the Richter scale”.
Yet Ireland has, for years, played host to some of the highest libel awards in the world. Prior to the Kinsella case, the most compensation was the €1.87 million won by PR consultant Monica Leech over a series of articles in the Evening Herald in 2004 which falsely suggested that she had had an affair with a government minister. Independent Newspapers characterised the award as a glaring example of the need for the review of Ireland’s defamation laws.
Legislative changes happened the same year but, despite improvements under the current regime, high awards remain the rule rather than the exception. Along with that, there is still no requirement that actual loss to business or personal reputation has to be proven. All the plaintiff has to do is make the claim.
This is in stark contrast to the UK, where someone suing for libel has to actually prove that there was “serious harm” to their reputation as a result of the publication and where the maximum award for such a proven claim is £200,000 (€280,000).
It is also an uncomfortable truth that, in the Irish civil courts, a bruised ego is a far more valuable commodity than a missing limb — or worse.
The case of Alan O’Gorman illustrates this well. At the age of 21, Alan, from Co Meath, had his stomach needlessly removed by surgeons at St Vincent’s Hospital in Dublin who incorrectly diagnosed him with cancer. While Martin McDonagh’s good name had been deemed worthy of €900,000, O’Gorman was awarded just €450,000 - half that amount.
Other high awards for libel include the €750,000 given to billionaire businessman Denis O’Brien in 2006 against Mirror Group Newspapers. The O’Brien award had originally been IR£250,000 but MGN appealed it on the grounds that the award was excessive. The matter was sent for retrial on the issue of damages only for a new jury — who knew nothing about the previous award — to multiply it.
For years Ireland gave unlimited discretion to juries in assessing damages. Such was the level of disproportionate jury awards and the exorbitant costs of libel actions that a new defamation regime was introduced in 2009 to shepherd, in the words of one Irish law firm, “the wandering sheep” sitting on Irish juries.
The new act introduced a new remedy into defamation law. This permits a plaintiff, instead of suing for damages, to seek an order in the Circuit Court that the publication publish an apology, correction or retraction and desist from republishing the defamatory material. The action is heard without a jury.
In cases heard by a jury, the new act also instructs a judge to direct the jury as to the amount of compensation they may award. It had been expected that this would lead to a reduction in the level of damages awarded in the future.
But - considering awards made under the new legislation - the jury is still out on that.