Defamation / Reputation
Commonwealth v. Pon
Closed Expands Expression
Global Freedom of Expression is an academic initiative and therefore, we encourage you to share and republish excerpts of our content so long as they are not used for commercial purposes and you respect the following policy:
Attribution, copyright, and license information for media used by Global Freedom of Expression is available on our Credits page.
The European Court of Human Rights held that an excessive damages award in a defamation claim violated the Herald newspaper’s right to freedom of expression, and that trial judges should give sufficient guidance to juries when they are determining the damages to award in defamation proceedings. Ms. L., a PR consultant, sued the Herald for articles relating to a rumored extramarital affair between her and Mr. C., a government minister. The Court reasoned that the lack of guidance given by a trial judge to a jury on the assessment of damages and the subsequent failure by Ireland’s Supreme Court to explain how it had reached a reduced, but still excessive damages award, led to an unacceptable unpredictability which had a “strong and continuous chilling effect on the news media in Ireland, hindering them in reporting on matters of legitimate public concern.”
The Court noted that the law had changed with the adoption of the 2009 Defamation Act, which enables the trial judge to give more detailed directions to a jury on the assessment of damages.
This case involved an action initiated against the Herald newspaper (formally known as the Evening Herald) by Ms. L. for defamation. The Herald published eleven articles over two weeks relating to a rumored extramarital affair between a government minister, Mr. C., and Ms. L., a public relations consultant. The articles also raised issues over the awarding of government contracts. The Herald even went so far as to alter certain photographs to make it seem like Ms. L. was in an intimate relationship with Mr. C. The case was tried by a jury, which found the statements to be defamatory and awarded Ms. L. EUR 1,872,000 in damages. The jury was given little guidance by the trial judge on the issue of damages and was instructed that the figure was solely its responsibility. The Herald did not dispute the defamation decision and issued a public apology. However, it appealed to the Supreme Court to contest the amount of damages arguing that “no reasonable jury could have made such an award, that it was disproportionate to the damage caused and amounted to an unlawful interference with the applicant company’s rights under the Constitution and the Convention.”
The Supreme Court found the damages were excessive and reduced the award to EUR 1.25 million, with a concurrence filed arguing that the case should be retried by another jury. The Court did not find error on the part of the trial judge in his instructions, but found that the award was so large it should be set aside. Specifically, it identified four factors for determining the validity of a damages award in defamation cases: the gravity of the libel; the extent of the publication; the conduct of the defendant; and the impact of the defamation on the Plaintiff [paras. 28-31].
The Herald appealed to the European Court of Human Rights claiming the damages award was excessive and “signified the absence of adequate and effective safeguards” in Irish defamation law, and hence was in violation of Article 10.
The Court found a violation of Article 10 of the Convention.
The Court firstly discussed the history of the law in Ireland concerning the jury’s involvement in determining the amount of damages in defamation cases, and the various changes there had been in the law. Interestingly, the Court included a quote from Dawson v. Irish Brokers Association (an unreported case), where the court called for a retrial because of an excessive award and stated: “unjustifiably large awards, as well as the costs attendant on long trials, deal a blow to the freedom of expression entitlement that is enshrined in the constitution” [para. 43].
The Herald argued that the excessive damages award violated its right to freedom of expression under Article 10. It submitted that the complete unpredictability of damages awards in defamation proceedings in Ireland created a chilling effect on news outlets reporting on matters of public concern.
The government countered that the very process of having juries decide damages awards in defamation cases led to unpredictability which the Herald should have anticipated when they acted in an unethical way towards Ms. L. by manipulating photographs and publishing sensationalist news. Further, the Supreme Court had issued a decision reducing the amount of damages and included the factors to be considered in assessing damages in a defamation case. The government also noted that the article had focused on Ms. L., a private person, and not Mr. C., a senior political figure and considered that this aspect of the case, which engaged the positive obligation on States under Article 8 to protect privacy and family life, distinguished it from other defamation actions.
Representative newspaper associations made third party submissions arguing that Irish defamation law had a chilling effect on newspapers, leading to a “marked reluctance to publish stories of grave public interest for fear of very high awards of compensation, even for minor mistakes” [para. 77]. The third parties pointed out that, at that time, Irish defamation law stood in stark contrast to the law of neighboring England and Wales because of its onerous legal penalties and they asked the Court to intervene to give guidance on the amount of damages which could be awarded by the jury.
The Court noted that the parties did not dispute that the damages awarded restricted the Herald’s freedom of expression nor that the interference had the legitimate aim of protecting Ms. L.’s rights. The Court found that the interference was prescribed by law fairly swiftly, but went on to discuss whether this interference was necessary in a democratic society. Firstly it considered whether the damages award was unusually high (in both in the lower court and the Supreme Court) in comparison with other domestic law. The parties did not dispute that it was. Therefore, the question for the Court was whether there were adequate safeguards in place in the national court so as to protect against unpredictably large damages having a chilling effect on the freedom of the press. The Court said that the highest scrutiny was called for to determine what safeguards were in place to protect against possible interference. It acknowledged that the judge in the trial court gave guidance to the jury on a damages award but noted that this guidance was very vague and ineffective. The Court said that the trial judge did not “reliably guide the jury towards an assessment of damages bearing a reasonable relationship of proportionality to the injury sustained by Ms. L. to her reputation and private and family life” [para. 92]. The Court then considered the safeguards in place when the case was reviewed by the Supreme Court. The Supreme Court found the award to be so excessive that no reasonable jury could have awarded such an award and, in so doing, had applied an effective safeguard. However, having done this, the Supreme Court then substituted its own award instead of submitting the case to a new jury or ordering a retrial. Further, the amount it awarded, although reduced, was still the most substantial award ever made in a defamation case of this nature and, in reaching the amount, the Supreme Court had given little or no explanation as to how it had arrived at that figure. Taking all these considerations into account, the Court found a violation of Article 10. It awarded EUR 20,000 to the Herald to cover its costs and dismissed the remainder of the Herald’s claim for just satisfaction.
In closing, the Court noted that the law had changed with the adoption of the 2009 Defamation Act, which enables the trial judge to give more detailed directions to a jury on the assessment of damages.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
This decision expands expression by finding that excessive damage awards can have the effect of chilling the speech of the press. Although the case was decided under an earlier version of the law that has since been changed, it emphasizes the importance of a trial judge’s guidance on the assessment of defamation damages in these type of cases.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Case significance refers to how influential the case is and how its significance changes over time.
Judgments of the European Court of Human Rights are binding upon parties to the case and constitute an authoritative interpretation of the meaning of Convention rights for all other States that are party to the Convention.
Let us know if you notice errors or if the case analysis needs revision.