While no one would deny Mr De Rossa his right, like any citizen, to take the case, and no one would dispute the jury's right to bring in a verdict in Mr De Rossa's favour based on the evidence presented to them in court, it is difficult to see how in any circumstances an award of £300,000 could be justified.
That sum is about 20 times the average industrial wage in Ireland and probably five or six times Mr De Rossa's annual salary as a politician. The article was published in 1992. Since then Mr De Rossa was re-elected to the Dail, became a government minister, and in the view of many people, a very successful one. There does not seem, therefore, to have been any tangible harm to his reputation. However, in libel cases in this State harm is presumed; there is no requirement to prove actual harm.
In some countries, such as France, compensation is awarded only where there is proof of harm. The European Court of Human Rights - in a judgment which must be borne in mind by all 40 states, including Ireland, that are party to the European Convention - has said that the level of damages (compensation) awarded in libel cases must be proportionate to the harm done.
Added to the damages award in the De Rossa case are the crippling legal costs involved. The Sunday Independent is part of a large stable; it can survive. A similar award against a smaller newspaper could spell the death knell. A sizeable award against a book publisher or local radio station, which in Ireland are mostly small operations, would almost certainly mean the end.
The risk of such an award will now be so daunting that media organisations are likely to opt to stay clear of controversy and err on the side of caution, or will end up settling even spurious or feeble claims with money rather than risk going to court. Individuals will gain in the short term but the Irish reading and listening or viewing public will ultimately pay the price in timid or bland journalism.
There is, therefore, a much more fundamental issue involved than the amount of money awarded and that is the issue of robust comment in the media on political and other public matters. This is a point that was vigorously argued in court by counsel on behalf of Independent Newspapers and, indeed, acknowledged by Mr De Rossa.
One has to hope the jury fully subscribed to the argument but simply felt that the article in question had gone beyond the limits of robust comment. It is, however, an extremely important matter. The operation of the libel laws in this State has meant certain stories are not run or are greatly watered down. A watershed appeared to have been reached with the recent Dunnes tribunal - the value of having information of public interest out in the open became clear.
The role of the media in making information available to the public, in offering comment and analysis, in furthering public awareness and debate is vital. As the European Court of Human Rights has said, this is the task of the media, it is incumbent on them to impart information and ideas on political questions and other matters of public interest. While in doing so the media must not overstep the bounds set for the protection of the reputation or rights of others - which was the crucial question regarding the Sunday Independent article - politicians, as representatives of the public, must, in carrying out their public role be expected to accept a greater degree of criticism than private individuals.
Therefore, in deciding whether the media's right to publish information and ideas can justifiably be curtailed, the key question is whether the restriction is necessary in a democracy.
Relevant considerations include the value of the information to the public, the context in which it is given and the aim it seeks to achieve. A wide latitude is given to comment (the expression of opinion) or value-judgments (a journalist's assessment of information or events), even when they are based on information or public perceptions that might not always be wholly accurate (Thorgeirson v Iceland, 1992).
In addition, even where a restriction on media reporting or comment is justified, the restriction itself must be proportionate to the aim it seeks to achieve. An award of £300,000, plus even higher legal costs, 4 1/2 years after publication and following three outings in the High Court is arguably disproportionate and may not even be the most appropriate or effective form of vindication for Mr De Rossa.
What then must be done? It seems to me that there are two avenues: either an appeal to the Supreme Court or reform of the libel laws by the legislature, or preferably both. Both have brought significant improvement in the UK.
There, it has been held that local authorities and political parties cannot sue for libel; the Court of Appeal has greatly reduced the amount of damages in a number of libel cases and issued directions for juries to enable them to arrive at an amount of damages that is proportionate to the degree of the libel - a duty highlighted by the European Court of Human Rights in Tolstoy v UK in 1995.
In Ireland, the Supreme Court has already - in Barrett v Independent Newspapers in 1986 - shown a willingness to intervene when damages are disproportionate, and has indicated that juries should be given directions in assessing damages. The Law Reform Commission also has charted the way to legislative reform, and the Progressive Democrats, now in government, previously introduced a Private Members' Bill based on the Commission's recommendations.
However, with politicians now making up nearly a quarter of all libel plaintiffs, it is perhaps not surprising that there has not been any great enthusiasm to accelerate the introduction of reform. While a new Defamation Act is imperative, if only to update a grossly outdated law, and provide more effective remedies for plaintiffs than protracted High Court proceedings and money damages, the Supreme Court should also be called upon to play a role.
Independent Newspapers, having pursued this case so far, now owes it to the rest of the Irish media to take an appeal to the Supreme Court to allow it the opportunity to hand down a set of principles and guidelines which will ensure that damages awards in future are proportionate.
The highest award the Supreme Court has upheld to date in a libel case is £90,000 in a case in which a British tabloid libelled a barrister who acted as a Government's observer at the Gibraltar inquest. Even then, the Supreme Court took the view that £90,000 was at the upper limit but not so disproportionate as to merit interference by the court.
It is likely, in my view, that the Supreme Court would seize the opportunity in the De Rossa case to establish principles and guidelines to the benefit of all the media. If not, the Strasbourg court almost certainly would.
Marie McGonagle is a lecturer in law at University College Galway and author of a textbook on media law