Let judges, not juries, decide libel damages

Freedom of expression has been impaired by excessive awards, argues David Ward

There exists a long-established principle in constitutional democracy, including Ireland, that when someone’s life, honour or liberty is jeopardised they should have the right to be judged by their fellow peers. This point was made in the British parliament in opposition to the first reading of the bill that culminated in the Defamation Act 2013. This act in effect effectively reversed the presumption in favour of jury trials in such cases in the UK, making judge-alone trials the prevailing norm.

To suggest outright abolition of juries in defamation claims in Ireland may be a step too far, especially when you consider the modern definition of what is defamatory under Irish law. The Defamation Act 2009 defines a defamatory statement as one that tends to injure a person’s reputation in the eyes of reasonable members of society. This is straightforward, unlike other more complex legal principles. Jurors are supposed to embody reasonable members of society entrusted with the role of trier of fact. This consideration would tend to support a contention that they have a continued role to play in defamation claims.

In these actions it is for the jury to determine as a matter of fact whether the impugned statement has defamed the plaintiff. Appellate courts are hesitant to interfere with decisions of juries, as their decision as arbiters of fact and meaning has been reached following their consideration of oral evidence, legal submissions, the demeanour of witnesses and review of all documents presented to the court.

The underlying rationale is that what is defamatory can be a matter of opinion, and opinions can vary reasonably within wide parameters. As such a court will intervene only if it concludes that the decision reached was one that reasonable members could not or ought not to have come to. Similarly the judge may decide that the statement is not capable of defamatory meaning and remove the decision from the ambit of the jury. These situations seldom arise but mean that the power of the jury is limited by the trial judge, if necessary.

This is not to suggest that the role of the jury in defamation claims does not require reform, but simply that outright abolition may be premature. One responsibility afforded to the jury has attracted well-founded criticism. There is substantive basis for a contention that the legislature has fallen short of its anticipated reforms in the context of damages, and in particular to the continued role of the jury in the assessment of damages.

The law of defamation entails a balancing of two fundamental rights: the right to a good name and freedom of expression. Freedom of expression is universally accepted as a crucial feature of constitutional democracies. Prior to the Defamation Act 2009, the old defamation regime had long been the subject of criticism from defendants — principally media organisations — for the disproportionately high level of damages awarded to successful plaintiffs.

The High Court jury decisions that were determined under the old regime underline this point. In Leech v Independent Newspapers, a series of defamatory articles led a jury to award Leech €1.87m in the High Court. Donal Kinsella was awarded €10m in damages as a result of an action he took against his former employers after they issued a press release containing defamatory allegations.

There is a legitimate argument that these awards are excessive and have had a chilling effect on the media, restricting freedom of expression. These points were raised during the appeal by Independent Newspapers that led to the damages being reduced to €1.25m in the Supreme Court. Kinsella’s award is the subject of a forthcoming case in the Court of Appeal.

Under the new act, the legislature did not exclude juries from assessing damages, but a provision was inserted requiring judges to give directions to the jury in relation to their assessment of damages.

In spite of this, the failure to completely remove juries from the process of determining damages will result in similar lengthy and costly appeals against damages to the Court of Appeal. This is an outcome at odds with the aims and ethos of the legislation: procedural expediency and cost-efficiency for potential litigants. The issue could be rectified by allowing the trial judge to assess the issue of damages.

It is a valuable feature of the current system that the ultimate decision as to whether the words are defamatory is decided by a group of lay people in accordance with the prevailing norms and values of the society and era in which it was made. Urgent and innovative reform is needed in respect of how damages are assessed in defamation claims to protect freedom of expression and the role of the media in Irish society.

David Ward, a law student at University College  Dublin, is the inaugural winner of the Mark Sinclair internship award organised by News UK & Ireland.

This article was first published in The Sunday Times on the 23rd of August 2015.






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