CASE OF INDEPENDENT NEWS AND MEDIA AND INDEPENDENT NEWSPAPERS IRELAND LIMITED v. IRELAND
No violation of Art. 10
Georg Ress;Mark Villiger
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). 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 activity. 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 were anti-Semitic. 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 verdict. 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 [1986] 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 damages.” 18. The trial judge continued: “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 [1993] 4 All E.R. 975, and John v. M.G.N. Ltd [1996] 2 All E.R. 35) and on the judgment of this Court in the case of Tolstoy Miloslavsky v. the United Kingdom (judgment of 13 July 1995, Series A no. 323). 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 nature, namely: “...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 and opinions. 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 [1988] I.R. 436). This introduces the concept of proportionality which is recognised in our constitutional jurisprudence.” 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.” 25. Accordingly, 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. 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. He concluded: “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 in Government. 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 credibility. 36. The Chief Justice concluded: “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 as compensation.” 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 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, 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. 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 concluded: “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.” 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.” 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 Supreme Court. 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.” 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 noted: “... 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 of Justice.” 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.” 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 IR£515,000. 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 plaintiffs ... 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. 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 that: “... 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: .” 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 IR£60,000. 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 that: “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.” 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 itself. 69. The case of Murphy v. the Independent Radio and Television Commission ([1999] 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.” 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. 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. 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. Summary The function of assessing damages in defamation proceedings heard before a jury should remain with the jury; 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; 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. ... 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.” 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 GBP 110,000. 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 way.” 79. All third parties endorsed the applicants’ submissions. 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. 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. 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 the LAG. 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. 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. 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 John v. M.G.N. cases. 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.