The European Court of Human Rights' ruling against Independent Newspapers' appeal over the De Rossa libel award will disappoint the media, writes Michael Kealey
In a mixed month for the media, the bad news was saved for last. There were victories for the press when the Irish courts refused applications to stop the broadcast of two television programmes. One by the BBC concerned corruption among certain gardaí in Donegal; the second was on conditions at the Leas Cross nursing home. In both cases freedom of expression won out.
Then came the news that the Cabinet had apparently long-fingered libel reform pending a review of privacy laws, even though legislation had been promised in the Programme for Government.
On Thursday the European Court of Human Rights weighed into the debate about press standards. In a decision that will disappoint the media, it found against Independent Newspapers which had appealed a libel award of IR£300,000 (€ 380,921) to former government minister Proinsias De Rossa.
Almost 13 years ago Eamon Dunphy wrote an article that followed an Irish Times report which had uncovered a letter to the Soviet Union's Communist Party seeking financial help for the Workers' Party. The letter, apparently signed by Mr De Rossa, referred to "special activities" that had previously helped fund the party. At the time of publication Mr De Rossa was leader of Democratic Left and was in negotiations about his party's participation in what became the rainbow coalition.
Mr De Rossa sued the Sunday Independent and three hard-fought trials followed. Two did not reach a conclusion. In the third, a jury decided that Eamon Dunphy's article falsely alleged that Mr De Rossa was involved in or tolerated serious paramilitary crime and supported violent communist oppression. They gave him £300,000 damages, which the Supreme Court upheld, the highest it has allowed.
Independent Newspapers appealed to the European Court. The Sunday Independent argued that the award was excessive and disproportionate to any damage done to Mr De Rossa's reputation. Importantly, it also sought to challenge the system where juries determine the size of an award without detailed guidance from the judge. No figures can be mentioned to juries; in effect they are merely told that any award must be fair and reasonable. The Sunday Independent alleged that this leads to erratic decisions.
It argued that in 1993 the Supreme Court upheld an award to barrister Donagh McDonagh against the Sun for a very grave defamation. The court said, however, that the damages of £90,000 were at "the top of the permissible range". The newspaper said it was illogical that a jury should determine the award in the De Rossa case four years later without having this information. They needed to know the Supreme Court's views about awards for serious libels to determine how much Mr De Rossa should get. The paper said the jury should also be told about awards in personal injury actions to make appropriate comparisons with damage to reputation. In contrast to Ireland, UK juries are given both financial guidance and information about personal injury awards.
The State relied upon the latitude given to it under European law to determine its own laws and said there were important differences between the law in the UK and Ireland. It also said that because the Supreme Court could overturn very high awards and because damages had to be proportionate to the damage suffered, a proper balance had been struck. Mr De Rossa had been gravely libelled so the award should stand.
By a six to one majority, the European Court preferred the State's arguments. The decision will be welcomed by those concerned by the excesses of the press.
However, the Minister for Justice appears determined to reform Ireland's outdated libel laws. When in Opposition, he introduced a Private Members' Bill that included jury guidance. As long ago as 1991 the Law Reform Commission said that Irish law failed in its two main aims: to protect people from unjustified attacks on their good name and to allow for the publication of matters of public interest. Despite this the law has not been reformed. Some members of Government believe that defamation reform should be linked to a strengthened law of privacy. Yet, recent cases would appear to put the lie to that. The European Court gave a major decision about media intrusion last summer, in a case involving Princess Caroline of Monaco. Three German magazines published photographs of the princess taken in public places.
The European Court of Human Rights said that publication of the photographs had violated the princess's right to privacy. "Every person, however well- known, must be able to enjoy a legitimate hope for the protection of . . . their private life," the court said. "The general public did not have a legitimate interest in knowing Caroline's whereabouts or how she behaved generally in her private life".
The court overturned a German ruling, which said that, as a public figure, Princess Caroline had to accept being photographed in public .
The practical effects of this decision are significant. The press will have to recognise the "private sphere" of public figures. This could jeopardise much of their present reporting, particularly celebrity- based stories. The European Court has not been a happy hunting ground recently for the media.
Michael Kealey is a solicitor with William Fry, specialising in media law.
