INDEPENDENT NEWS and MEDIA plc and INDEPENDENT NEWSPAPERS (Ireland) LIMITED v. IRELAND

THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 55120/00
by Independent News and Media plc
and Independent Newspapers (Ireland) Limited
against Ireland

The European Court of Human Rights (Third Section), sitting on 19 June 2003 as a Chamber composed of

MrG. Ress, President,
MrL. Caflisch,
MrP. Kūris,
MrR. Türmen,
MrJ. Hedigan,
MrsM. Tsatsa-Nikolovska,
MrsH.S. Greve, judges,
and Mr V. Berger, Section Registrar,

Having regard to the above application lodged on 20 December 1999,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The second applicant company publishes newspapers including the Sunday Independent and is a wholly owned subsidiary of the first applicant company (formerly known as Independent Newspapers plc). The applicants are represented before the Court by Ms P. Mullooly, a solicitor practising in Dublin.

A.  The circumstances of the case

The facts of the case, as submitted by the applicants, may be summarised as follows.

On 13 December 1992 the Sunday Independent published an article 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 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.

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'?”

In August 1993 Mr de Rossa initiated libel proceedings in the High Court against the first applicant. The first trial (November 1996) lasted eight days. The jury was discharged. The second trial lasted fifteen days. The jury failed to reach a verdict.

1.  De Rossa v. Independent Newspapers plc, the High Court

The third trial lasted eleven days and finished on 31 July 1997. The jury found that the impugned words implied that Mr de Rossa was involved in or tolerated serious crime and that he personally supported anti-semitism and violent communist oppression.

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.”

He then referred to Mr Justice O'Flaherty's judgment in an unnamed case (which was 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.”

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.”

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.”

The jury assessed damages at 300,000 Irish pounds (IR£).

The first applicant appealed the award. In the first place, the first applicant accepted that the jury had been directed on damages in accordance with the law. However, it noted that the trial judge was 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 the first applicant submitted that this practice was inconsistent with the provisions of the Constitution and of the Convention. It was argued that 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' cases and in other libel cases. Secondly, the first applicant suggested 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. It suggested that an appellate court 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).

2.  De Rossa v. Independent Newspapers plc [1999] 4 IR 6

(a)  The majority judgment of the Supreme Court

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.”

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.

Prior to examining specifically the arguments about additional guidelines to the jury and a stricter review by the appellate court, 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”. The constitutional protection for the right of freedom of expression was to be balanced against the constitutional protection of every citizen's good name. This introduced 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 (at pp. 24-25) and considered that the passage 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.”

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.”

Accordingly, and as regards directions to be given to juries, neither the Constitution nor the Convention required that the guidelines to be given to juries should be changed in the manner 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 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.

On the contrary, the jury must base its assessment entirely on the facts of the case as established by them (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 of those features. 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. Accordingly, the Chief Justice was not prepared to move away from the traditional guidelines given to juries in the assessment of damages in libel cases.

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.”

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”.

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.”

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 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.”

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).

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.

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.

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.

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 such 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.

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.”

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.

(b)  The dissenting judgment in the Supreme Court (Mrs Justice Denham)

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, she pointed out that she 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 provided to a jury: it would not diminish the place of the jury if it was informed of issues relevant to the proportionality of the damages. Referring to the John v. M.G.N. judgment, she considered that such information would, in fact, enhance the role of the jury as they would be assisted by the availability of comparative and relevant information.

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.

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 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.”

B.  Relevant Irish law and practice

1.  The Constitution

Article 40(3(1) of the Irish Constitution provides as follows:

“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.”

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.”

2.  Relevant case-law

(a)  Barrett v. Independent Newspapers Limited [1986] I.R.13

The case concerned an allegation, found to be defamatory, that a certain politician had pulled a journalist's beard when leaving parliament. The jury awarded IR£65,000 at first instance. Chief Justice Finlay considered that the following principles applied to the damages 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.”

He considered 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.”

Mr Justice Henchy outlined the principles in his judgment 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. They 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.”

The award was set aside.

(b)  McDonagh v. News Group Newspapers Limited (Supreme Court judgment of 23 November 1993, unreported)

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. 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.”

He described the role of a lawyer 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.”

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.”

The award was not set aside.

(c)  Dawson and Dawson v. Irish Brokers Association (Supreme Court judgment of 27 February 1997, unreported)

The plaintiff brothers were insurance brokers and took libel proceedings against the Irish Brokers Association concerning a letter in which the latter informed insurance companies, the Minister for Industry and Commerce and the Insurance Intermediary Compliance Bureau that the plaintiffs' company's membership of the Association had been terminated due to non-compliance with the requirements of insurance legislation. Having found the letter defamatory, the jury awarded IR£515,000. As to 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 cost attendant on long trials, deals a blow to the freedom of expression entitlement that is enshrined in the Constitution.”

Quoting with approval the judgment of Mr Justice Henchy in the above-cited Barrett case and noting the evidence of any harm to the plaintiff's reputation and as to 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.”

The Supreme Court ordered a re-trial. At the end of the fourth trial in the High Court, the plaintiffs were awarded IR£135,000 by a jury.

(d)  O'Brien v. M.G.N. Ltd (Supreme Court judgment of 25 October 2000, unreported)

Mr O'Brien was a well-known and successful businessman. The jury found defamatory the defendant's allegations that he had, inter alia, bribed politicians to secure radio licences and been involved in other corrupt practices. The jury ordered M.G.N. Ltd to pay IR£250,000 in damages and M.G.N. Ltd appealed, its grounds of appeal being very similar to those before the Supreme Court in the de Rossa appeal. It 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.

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. He noted that the Supreme Court could only re-consider one of its previous judgments if that judgment was so “clearly wrong” that there were “compelling reasons” why it should be overruled. He concluded that the appeal before it had to be dealt with on the basis of the principles outlined by the Supreme Court in the de Rossa and Barrett cases.

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.”

In making this determination of 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.

The Chief Justice considered the allegations against Mr O'Brien to be “undoubtedly seriously defamatory statements which justified the award of substantial damages”. However, while he considered the damages awarded by the jury to be in the highest bracket of damages appropriate to any libel case, the libel, while serious, could not be regarded as 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”.

Mr Justice Geoghegan also found that the Supreme Court's judgment in the de Rossa case had not been wrongly decided. However, he considered that the jury award should not be set aside. 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.”

On that basis, Mr Justice Geoghegan had no hesitation 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”.

He went on to explain why comparison's 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.

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”.

(e)  Hill v. the Cork Examiner Publications Limited (Supreme Court judgment of 14 November 2001, unreported).

Mr Hill was serving time in prison having pleaded guilty to a charge of assault occasioning actual bodily harm. A photograph of his prison cell was published by the defendant under a headline referring to C Wing of the prison and in an article explaining that the C Wing prisoners were child molesters and sexual offenders. The jury agreed this was defamatory and awarded him IR£60,000. On appeal to the Supreme Court, Mr Justice Murphy noted:

“... 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.”

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.”

The award was not set aside.

C.  Relevant English law and practice

1.  Rantzen v. M.G.N. Ltd [1993] All ER 975

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 (at p. 994 of the report):

“... 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?”

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.

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.

2.  John v. M.G.N. Ltd. [1996] 2 All ER 35

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, that:

“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.”

It was true that the ultimate decision, subject to appeal, was that of the jury which was not bound by submissions made to them, it was considered, nevertheless, there was no reason why the judge, in his charge to the jury, or counsel in their submissions, 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.”

As to the factors of which one should take account in assessing the damages to be awarded, the Court of Appeal found (at pp. 47-48):

“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.”

COMPLAINT

The applicants complain under Article 10 of the Convention about a disproportionately large award and about the lack of adequate and effective safeguards in Ireland against such awards.

THE LAW

The applicants maintain that the award against them was disproportionately large and that there were no adequate or effective safeguards against disproportionate awards. They submit that the safeguards that existed mirrored those considered to constitute a violation of Article 10 of the Convention in the Court's judgment in the above-cited Tolstoy Miloslavsky case.

A.  Exhaustion of domestic remedies

The Court recalls that in a legal system providing constitutional protection for fundamental rights, it is incumbent on the aggrieved individual to test the extent of that protection and, in a common law system, to allow the domestic courts to develop those rights by way of interpretation. In this respect, it is recalled that a declaratory action before the High Court, with a possibility of an appeal to the Supreme Court, constitutes the most appropriate method under Irish law of seeking to assert and vindicate constitutional rights (application no. 24827/94, decision of 14 April 1998, Decision and Reports (DR) 93, p. 15).

In the present case, the applicants did not institute separate proceedings to which the Attorney General was joined in order to challenge the constitutionality of the common law principles at issue. However, during the first applicant's appeal, the Supreme Court expressly considered and rejected the submission that those principles violated Article 40.6.1 of the Constitution. In the above-cited and subsequent case of O'Brien v. M.G.N. Ltd, the Supreme Court decided by a majority that there were no compelling reasons to reconsider its de Rossa judgment. In any event, the Government were asked by the Court to address the question of whether the applicants had exhausted all effective domestic remedies and the Government accept that they have done so (see, for example, application no. 23818/94, decision of 2 March 1995, DR 80-A, p. 157).

The application is not therefore inadmissible for failure to exhaust domestic remedies within the meaning of Article 35 § 1 of the Convention.

B.  Merits

1.  The parties' submissions

The parties do 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.

However, the parties diverge on the question of whether the award was “necessary in a democratic society”. In particular, they disagree as to whether the level of the award and the nature of the safeguards against disproportionately high awards were such as to render the interference “unnecessary” and the parties mainly differ as to the sustainability of the comparison between the present application and the Tolstoy Miloslavsky case.

(a)  The Government consider that the comparison between this and the Tolstoy Miloslavsky case cannot be maintained for three reasons. The applicants disagree.

In the first place, the Government submit that the high level of the award may have been a matter of some concern to the Court in the Tolstoy Miloslavsky case, but the level of the award in the present case was comparatively low. It was one sixth of the award in the Tolstoy Miloslavsky case and the highest prior libel award was not IR£90,000 (the above-cited McDonagh case) as the applicants suggest - 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 noted 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.

The applicants contend that the size of the award was a significant factor for the Court in the Tolstoy Miloslavsky case, of which the present award was one fifth. More importantly, the correct comparison is between prior libel awards in Ireland and the award against the applicants was over three times any previously upheld by the Supreme Court namely, the award in the McDonagh case. For the precise reasons noted by the Government, the awards in the Denny and Dawson cases are not relevant.

Secondly, the Government argue that the jury was given greater guidance in the present case than in the Tolstoy Miloslavsky case and the Supreme Court made it clear that the jury's discretion was not without limits. Even though the guidance given did not mention specific awards in prior cases, it provided an example of the type of defamation which could be considered less serious against a person of similar standing in the community. Moreover, the applicant in the Tolstoy Miloslavsky case had alleged that the tenor of that trial judge's directions to the jury were to award high damages and to discount reasonably available alternatives whereas in the present case the applicant's accepted that the trial judge's directions were made in accordance with accepted practice.

The applicants submit that it is simply incorrect to say that greater guidance is given to juries in Ireland than was given to the jury in the Tolstoy Miloslavsky case, as is clearly demonstrated by the directions given to the jury by the trial judge and by the comments of the Chief Justice, to the effect that the trial judge was restricted by the law to giving the jury “guidance of so general a nature as to be meaningless”, in the present case.

The applicants contend that directions given to the jury in the present and the Tolstoy Miloslavsky cases are similar with two differences. The first difference is not relevant. The present trial judge suggested to the jury that it should place the present defamation in the context of other defamations, whereas in the Tolstoy Miloslavsky case, it was suggested to the jury that it should ignore other awards of which they had heard. However, in the applicants' view, it is of no assistance to a jury to tell it that it should assess a particular defamation in the context of the defamation established in another case without giving it any information about the award in that other case. Indeed, the Chief Justice pointed out that the 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 between the directions in both cases demonstrates, according to the applicants, that the guidance to the jury in the Tolstoy Miloslavsky case was, in fact, stronger than in the present case. The trial judge in the Tolstoy Miloslavsky case was able to mention the ability of money to purchase particular items, namely, a house. No such guidance was, or could have been, given under Irish law by the trial judge in the present case.

In addition, the applicants point out that the Court in the Tolstoy Miloslavsky case did not base its judgment, as the Government imply, on any allegation in that case that the trial judge had urged the jury to award high damages. Moreover, the applicants emphasise that, while the trial judge's direction to the jury in their case accorded with domestic practice, that practice breaches the requirements of Article 10 of the Convention.

Thirdly, the Government maintain that the test applied on appeal was also stricter in the present case than in the Tolstoy Miloslavsky case since the Supreme Court can set aside a jury award of damages if it is “disproportionate” to the injury suffered whereas the Court of appeal in the Tolstoy Miloslavsky case applied a substantively different and less strict “reasonableness” test. The Government argues therefore that the appellate court's power to set aside a jury award in a libel case in Ireland arises not “only if the award was so unreasonable that it could not have been made by sensible people and must have been arrived at capriciously, unconsciously or irrationally”, but also if it was disproportionate to the injury suffered. In doing so, the Government make the case that the principle of proportionality constitutes a separate and stricter ground for the appellate court's review of jury awards in libel cases in Ireland. Furthermore, they point out that, in determining that the jury award in the present case was proportionate, the Supreme Court considered the gravity of the libel, the effect on Mr de Rossa, the extent of the publication and the conduct of the first applicant. This global proportionality test is a tighter control than that which was exercised by the Court of appeal in the Tolstoy Miloslavsky case as demonstrated by the Supreme Court's review in this and other cases (where jury awards were overturned).

Finally, the Government underline that the fact that the award in this case was upheld does not demonstrate that the award was disproportionate: rather the fact that other substantial awards have been considered excessive shows that the safeguards in place ensure that awards are not disproportionate (referring to the above-noted cases of Dawson and Dawson v. the Irish Brokers Association and O'Brien v. M.G.N.).

The applicants contend that the Government is wrong in suggesting that there is some special test of proportionality in Irish domestic law which is different to the test applied by the English Court of Appeal prior to the above-cited Rantzen case. Indeed, they consider that there is no difference of substance between the test applied by the Supreme Court in the present case and by the Court of Appeal in England prior to the Rantzen case.

The applicants point out that, prior to the Rantzen case, the Court of Appeal could not set aside an award on the basis 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, unconsciously or irrationally” (the Tolstoy Miloslavsky case, § 50). The Court of Appeal in Rantzen confirmed that the test had changed so that the question was whether a reasonable jury could have thought that the award was “necessary” to compensate the plaintiff and to re-establish his reputation. In the present case, the Supreme Court expressly rejected the Rantzen test and suggested that the Supreme Court could only set aside an award if it was 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. The applicants contend that it is sophistry to suggest that the Supreme Court's use of the word “disproportionate” renders its test different to that applicable prior to the Rantzen developments: in each case the central question was not whether disproportionately high awards would be set aside but rather how the appeal court was to measure proportionality. The key question in each case was therefore whether the award was so high that no reasonable jury could have awarded it.

Thereafter the essential difference between this test and the test subsequently approved by the Court of Appeal in the Rantzen case and by the Court in its Tolstoy Miloslavsky judgment was the introduction of the requirement that the Court of Appeal should consider whether it was “necessary to compensate the plaintiff and to re-establish his reputation”. This is not a distinction without a difference, there being many awards which could be considered reasonable, but which might not be considered “necessary” to properly compensate. In the applicants' opinion, it is the absence of the requirement of “necessity” both from the test applied by the Court of Appeal prior to the Rantzen case and by the Supreme Court in the present case, that condemns those tests as being incompatible with the requirements of Article 10 of the Convention.

The fact that the Chief Justice stated in his judgment in the present case that the provisions of the Convention were met by Irish law is not determinative of the issue. It is for this Court to make this determination and, in particular, to decide whether the tests applied domestically provide adequate protections from disproportionate awards within the meaning of Article 10 of the Convention.

Moreover, the applicants submit that the Government's reference to the Supreme Court's consideration of the above-noted four factors in the case serves to underline common features between the present and the Tolstoy Miloslavsky cases. In any event, the examination of these four factors by the Supreme Court is not relevant, the pertinent point being rather the test against which those factors are measured.

Finally, the fact that other awards have been set aside does not prove, in the applicants' opinion, that the control exercised by the Supreme Court is adequate, not least because the Government referred 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.). In fact, the applicants remark that the Chief Justice in the O'Brien v. M.G.N. case compared previous libel awards upheld by the Supreme Court in assessing whether the award in that case was excessive. The applicants do not take issue with this comparative assessment: they disagree that Irish law does not allow the same matters to be opened to the jury at first instance. They consider that it is destructive of Article 10 rights for the original determining body (the jury) to be deprived of relevant matters while at the same time allowing those matters to be taken into account by the appellate court which applies a very high threshold before it will set aside the first instance award. A system which must deprive the determining body of pertinent information can never be thought to provide adequate and effective safeguards against disproportionately large awards.

(b)  The Government further consider that the award of damages in this case, the sole matter about which the applicant complains, was “necessary in a democratic society” within the meaning of Article 10 of the Convention. Apart from the fact that there were adequate and effective safeguards against awards disproportionate to the injury both at first instance and on appeal, the Supreme Court examined in detail the four factors described above in order to find that the damages' award was proportionate to the injury suffered by Mr de Rossa.

The applicants maintain that this argument of the Government misses the point. These elements were in fact similar in both cases (apart perhaps from the extent of distribution of the defamatory comments) but that was not the point of the Court in its Tolstoy Miloslavsky judgment. That judgment did not determine whether the nature and circumstances of the case justified the award made as necessary in a democratic society, but rather whether the award could be considered to be necessary in a democratic society given its size and the lack of adequate and effective safeguards at the relevant time against a disproportionate award.

(c)  The Government also argue that the Supreme Court's response in the present case fell within the margin of appreciation accorded to the State under Article 10 and they rely specifically on the level of damages awarded and the adequate and effective safeguards, at first instance and on appeal, against a disproportionately large award (the above-cited Tolstoy Miloslavsky case, § 48). The approach in Ireland may be different to that taken in the above-cited Rantzen case, but it is nevertheless within the Irish State's margin of appreciation.

The applicants accept that Ireland enjoys a margin of appreciation in terms of how it complies with the requirements of Article 10. However, they emphasise that the fact remains that the circumstances of the present case cannot realistically be separated from those of the Tolstoy Miloslavsky case. The applicants reiterate that it is simply not the case that juries in Ireland are given greater guidance than that given to the jury in the Tolstoy Miloslavsky case: indeed, if anything, the contrary is true. It is also not correct to contend that the Supreme Court exercised a more stringent test of proportionality than was exercised by the Court of Appeal in the Tolstoy Miloslavsky case: in its essential aspects the Irish test is no more stringent. Accordingly, if the law in the Tolstoy Miloslavsky case gave rise to a violation of Article 10 of the Convention, so does the domestic law at issue in the present case.

The applicants, of course, accept that the margin of appreciation accorded to a State means that Ireland can choose from the many solutions possible to develop the safeguards in a manner different to the Court of Appeal in the Rantzen and John v. M.G.N. cases. This does not change the applicant's view that the law as it stands is in violation of Article 10 of the Convention.

2.  The Court's assessment

The Court considers, in the light of the parties' submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

For these reasons, the Court by a majority

Declares the application admissible, without prejudging its merits.

Vincent BergerGeorg Ress
RegistrarPresident

Full & Egal Universal Law Academy