MICHAEL CLIFFORD: What price the truth? A jury decides

A NEWSPAPER asserting its human rights is, well, news. 

Independent News and Media is bringing a case to the European Court of Human Rights. The company wants the court to examine Ireland’s libel laws, following an award of €1.9m (later reduced to €1.25m) to Monica Leech, a PR consultant, in 2009.

When I read the item, I felt a queer blast from the past. I covered that trial. It centred around a claim that the Evening Herald had printed material and pictures which falsely suggested Ms Leech had had an affair with Martin Cullen, a former cabinet minister.

The jury found the material had meant there was an affair, which was false. There is no doubt that, given the jury’s decision, a wrong was perpetrated on Ms Leech and she deserved compensation. The level of the award, however, was staggering.

Put it into context. The average award at the redress board for former residents of state institutions was €60,000. Those people had their childhoods swiped away, their psyches damaged, and, tragically for many, their lives ruined before they even reached adulthood.

Ms Leech was also done a wrong. She had come to public prominence in 2004, when it was revealed that she had received contracts worth €300,000 from Cullen’s department. She had been a political supporter of Cullen’s in their hometown of Waterford. An inquiry conducted by a former chairman of the Revenue Commissioners found there was nothing wrong with Cullen’s department employing her, but it also found it difficult to determine the extent of the work she did for the money. Wherever the blame may lie for that, it wasn’t with her.

It was in the fall-out from that story that the false allegations surfaced, for which the jury found she was wronged to the tune of €1.9m. Her counsel characterised the false allegation as casting her as a “slut, harlot, tart, floozy”.

He said the interpretation of the material cast her as “a liar, a cheat, cheating on her husband, cheating on her children, a tramp and a slut.” Presumably, that representation had a major effect on the jury, although the characterisations might well belong in the century that preceded the last one.

After the case, Ms Leech went on the radio and outlined what had befallen her as a result of the false allegations. “I have been assaulted in restaurants,” she told 4FM. “I’ve had my car vandalised. I’ve had stones thrown at me from moving cars. I have received horrible letters.”

Not even bankers have been subjected to the kind of treatment meted out to Ms Leech over the false allegations, but that’s the way it goes. There is no question but Ms Leech was entitled to compensation, but proportionality is another matter. That’s just one of a number of problems with the libel laws in this country.

What care you about the libel laws? Well, if you give a fig about corruption, abuses in public life, scrutinising decisions and criminality, you should do.

In January of last year, referring to the controversy over RTÉ paying out compensation to individuals who said they had been libelled by Panti Bliss on the Brendan O’Connor TV show, Pat Rabbitte issued a statement saying it would be “a matter of serious concern if recourse to our defamation laws was to have a chilling effect on public debate”. The phrase “chilling effect on public debate” is constantly and correctly used in reference to libel laws in this country.

RTÉ was heavily criticised for paying out without testing the alleged libel in that instance, yet anybody with any knowledge of the libel laws endorsed the decision. Defending a case in front of a jury that awards millions for damages unseen makes no sense.

And the damage perpetrated is unseen. In this country, somebody who believes their reputation has been injured does not have to produce evidence of the damage. It is akin to a plaintiff wearing a large overcoat appearing before a judge, alleging that he has lost his left arm, but not being required to produce the stump. Many successful plaintiffs in libel actions prospered in their careers in between the libel and the trial, and yet claimed that their reputations had suffered greatly. In light of the size of some of the awards that have been made in recent decades, is it any wonder that media outlets shy away from putting their trust in juries.

Then, there are the costs. When an outlet successfully defends an action, it may have to fork out for its own legal fees, even when the judge awards costs. Most plaintiffs simply wouldn’t have the money to pay the enormous costs involved. So, for a media outlet, it’s a lose-lose, taking a financial hit even when it is completely in the right. Is this the case in any other area of law?

Down the years, there was much huffing and puffing about reforming the law on libel, which ultimately led to a new law in 2009. In reality, the changes have been minimal, and much the same problems pertain.

For the centres of power, it’s a win-win. The libel laws have had a “chilling effect” on public debate. Increasingly, lawyers employed by media outlets to protect against libel are acting as censors. Traditionally, lawyers employed by media outlets attempted to allow editors to include as much material as possible on the right side of the libel laws.

Now, if there is even the smallest chance that somebody can make even a prima facie case for taking an action, then the media’s lawyer blocks that material on the basis that it will inevitably cost money, and possibly, in light of the structure of the laws, huge amounts. This is not a criticism of the media lawyers. They are acting in their client’s best interests.

However, it changes the dynamic of the media’s function to act as a watchdog for society. The issue is not one of ensuring that what you are publishing is fair and accurate, but ensuring that there is no possibility that that law can be used as a weapon to strike back against the media.

What’s the problem if you’re 100% sure of your facts? In the first instance, it’s not possible to always be 100% sure, and in that grey area lie many of the stories which unearth wrongdoing and corruption. For instance, a number of the cases highlighted by RTÉ’s Prime Time programme in relation to health scandals might never have seen the light of day if done by one of the less-resourced media outlets.

Equally, even when a case is successfully defended, the plaintiff is unlikely to have resources to pay the media outlet’s legal fees. (Plaintiff’s own counsel in libel actions generally operate on a no-foal, no-fee basis). Now, it would seem that one media outlet — INM — is going to Europe to see if some remedy can be found that might bring laws in this country into line with others, particularly the neighbouring jurisdiction, which has reformed its laws in recent years. Developments will be interesting to observe.


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