Case Summary and Outcome

The European Court of Human Rights held that there had been no violation of Article 10 of the European Convention on Human Rights. The case concerned a complaint by newspaper publishers arising from a very high libel damages award imposed following the publication of a highly critical article about a politician during coalition negotiations. The Court accepted that the award interfered with freedom of expression and acknowledged that unusually large damages could create a chilling effect on the press. However, it found that the interference pursued the legitimate aim of protecting reputation and was accompanied by sufficient procedural safeguards. In particular, the Court emphasized the role of appellate review under Irish constitutional law, which incorporated a proportionality requirement. The Court concluded that Ireland had not overstepped its margin of appreciation in striking a balance between freedom of expression and the protection of reputation.

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Facts

The applicants were two Irish-registered media companies, Independent News and Media plc and its subsidiary, Independent Newspapers (Ireland) Limited, the publisher of the Sunday Independent. The respondent was the Government of Ireland. The Sunday Independent, with a weekly circulation of around 250,000 copies reaching over one million readers, was Ireland’s most widely read Sunday title at the time.

The case arose from an article published in the Sunday Independent on 13 December 1992, titled “Throwing good money at jobs is dishonest.” The article was written by a well-known journalist and was published shortly after a general election, during coalition negotiations. It focused on Mr Proinsias de Rossa, then leader of the Democratic Left (a breakaway from the Workers’ Party), a sitting member of the Irish parliament, and a key figure in coalition talks. The article referred to a 1986 letter from Mr de Rossa to the Soviet Communist Party referencing “special activities” that had helped finance the Workers’ Party.

The article claimed that these “special activities” involved serious crimes, including armed robbery and currency forgery, and described them as part of a “twilight world” linking criminality with political action. It strongly implied that Mr de Rossa had knowingly benefited from or condoned these activities, and associated him with Soviet repression and anti-Semitism. It questioned the integrity of those who would accept his party’s involvement in government, given his associations with past criminal and ideological extremism.

Specifically, it stated: “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 […] that de Rossa was aware of what was going on.” It also alleged that Soviet communists—Mr de Rossa’s political allies—ran labour camps and were anti-Semitic, holding such regimes responsible for terror and murder.

In 1993, Mr de Rossa filed a libel action in the High Court. An eight-day first trial was aborted due to a subsequent article published during proceedings by the same newspaper. A second fifteen-day trial ended with a hung jury. A third trial concluded on 31 July 1997.

During this third trial, the judge instructed the jury in general terms on compensatory damages, explaining that their purpose was to compensate for harm to reputation, emotional injury, and to restore the plaintiff to the position they would have occupied had the wrong not occurred. He referenced Irish case law (including Barrett v. Independent Newspapers and Dawson & Dawson v. Irish Brokers Association), but, in line with the law at the time, gave no examples of previous awards or monetary benchmarks. Neither judge nor counsel were permitted to suggest specific figures to the jury.

The jury found that the article conveyed three serious defamatory meanings: that Mr de Rossa had been involved in or had tolerated serious crime, that he supported violent communist oppression, and that he had personally supported anti-Semitic ideology. The jury awarded Mr de Rossa IR£300,000 in general damages. The second applicant, as publisher of the newspaper, paid this amount and all associated legal costs.

The first applicant appealed to the Supreme Court of Ireland, arguing that the process for assessing damages was arbitrary, disproportionate, and lacked adequate safeguards. It submitted that the trial judge should have been allowed to provide comparative guidance on past libel awards, personal injury damages, or the purchasing power of money. The applicants urged the Supreme Court to adopt a proportionality test, similar to the “Rantzen test” from English case law, asking whether a reasonable jury could have found the award necessary to compensate and vindicate the plaintiff’s reputation.

On 30 July 1999, the Supreme Court rejected the appeal by majority. It reaffirmed the high threshold for appellate intervention, stating an award could only be set aside if it was “so disproportionate to the injury suffered and wrong done that no reasonable jury would have made such an award.” [para. 30] Upholding the award, it considered the libel’s gravity, the plaintiff’s standing, wide publication, and the defendant’s conduct, including the lack of apology.

In a dissenting judgment, Mrs Justice Denham disagreed with the majority. She argued that juries in defamation cases should receive more structured guidance, including references to previous libel and personal injury awards, and suggested that judges be permitted to discuss the likely impact of the award in real-world terms (such as income potential or spending power). She viewed the IR£300,000 award as excessive and disproportionate and stated that she would have reduced it to IR£150,000.

After exhausting domestic remedies, the applicants lodged an application with the European Court of Human Rights, alleging a violation of Article 10 of the European Convention on Human Rights (ECHR).

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Decision Overview

Judge Georg Ress delivered the Chamber judgment on 16 June 2005. The central issue was whether the jury’s award of IR£300,000, combined with the alleged absence of specific safeguards in Irish law to prevent disproportionate awards, violated the applicants’ right to freedom of expression under Article 10 of the ECHR.

The applicants argued that the award was excessive and that Irish defamation law was structurally deficient. They contended that juries received no meaningful guidance on appropriate damages levels, judges could not suggest figures, and appellate courts could only order retrials, not substitute awards. They maintained that this system lacked the safeguards required by Article 10, creating a chilling effect on public interest journalism, and was indistinguishable from the case of Tolstoy Miloslavsky v. the United Kingdom, where the Court found a violation of Article 10 due to the imposition of a high libel award in the absence of adequate controls.

The Government argued that the award was proportionate to the serious injury to reputation, followed established domestic law, and was subject to appellate review. It stressed that Irish constitutional law required a balance between freedom of expression and the right to reputation, incorporating a principle of proportionality. It defended the jury system and argued that the Supreme Court’s review applied a proportionality analysis and provided an adequate safeguard compatible with Article 10.

The applicable legal basis was Article 10 of the ECHR, which protects freedom of expression but permits restrictions for, inter alia, the protection of the reputation of others when they are prescribed by law, pursue a legitimate aim, and are necessary in a democratic society.

The Court first established that the award constituted an interference with the applicants’ freedom of expression, was “prescribed by law,” and pursued the legitimate aim of protecting reputation. The pivotal question was whether the award was proportionate, with the Court acknowledging that unpredictably large awards could chill speech and thus “require the most careful scrutiny.” [para. 114]

Its reasoning focused on comparing the adequacy of safeguards under Irish law to those in Tolstoy Miloslavsky. The Court rejected the Government’s attempt to compare the award mathematically with that in Tolstoy Miloslavsky, emphasizing that libel awards are shaped by case- and country-specific factors and cannot be meaningfully compared across jurisdictions. It clarified that describing the award as “unusual” merely triggered a closer examination of domestic safeguards and did not amount to setting a cap on libel damages or second-guessing the national court’s proportionality assessment.

The Court noted that, prior to this judgment, Irish juries had made awards of similar (IR£275,000 in Denny v. Sunday News; IR£250,000 in O’Brien v. M.G.N. Ltd) or higher (IR£515,000 in Dawson and Dawson) magnitude. While some were later set aside, this practice showed the present award was less exceptional than in Tolstoy Miloslavsky, where the damages were unprecedented and “three times the size of the highest libel award ever previously made in England.” [para. 117]

On jury guidance, the Court reiterated the Convention sets minimum standards but does not impose uniform solutions, leaving States free to choose the means they consider most appropriate to meet Convention requirements. Although it endorsed more structured guidance in Tolstoy Miloslavsky, this was not the only acceptable method. The decisive question was whether proceedings as a whole provided sufficient protection.

Here, the trial judge instructed the jury to award damages that were fair and reasonable, linked to the injury suffered and based on established facts, and directed them to consider factors such as the gravity of the libel, the plaintiff’s standing, the extent of publication, and the defendants’ conduct. He provided an example of “a relatively minor defamatory comment to allow the jury in the present case to assess the relative seriousness of the defamatory article published by the second applicant. He then followed up that example with a clear direction to the jury that, if it was to award damages, they would have to be substantial.” [para. 123] Taken together, the Court found that although Irish law traditionally limited specific guidance by judges, placing strong emphasis on jury autonomy, the trial judge in this case gave “somewhat more specific guidance” than in Tolstoy Miloslavsky. [para. 124]

The Court also distinguished Irish appellate review from that in Tolstoy Miloslavsky. It recalled that in Tolstoy Miloslavsky it had rejected an appellate review limited to asking whether an award was irrational or perverse, and had endorsed the more searching Rantzen test, which examines whether a reasonable jury could have considered the award necessary to compensate and vindicate reputation. Although the Irish Supreme Court acknowledged that its review could not be as intrusive as the Rantzen approach, the European Court found that Irish appellate review was nonetheless more robust than that criticised in Tolstoy Miloslavsky because Irish law required libel damages to be proportionate. This distinction was demonstrated by the Supreme Court’s detailed assessment of the award, which took into account factors such as the seriousness of the libel, its impact on Mr de Rossa as a political leader engaged in government negotiations, the scale of publication, the conduct of the newspaper, and the burden imposed on the plaintiff by multiple trials, before concluding that the jury was justified in awarding the highest level of compensatory damages.

Regarding the appellate remedy, the Court emphasized that while Irish courts cannot substitute awards, they can quash excessive ones and order retrials. Although the applicants argued that this remedy was inadequate, especially given the high cost of retrials and the inability of the second jury to be informed of the first, the Court held that the existence of judicial oversight, combined with the proportionality standard employed by the Supreme Court, offered sufficient protection under Article 10. It noted successful appellants could recover legal costs, and concerns about retrial inconvenience were irrelevant in the absence of a finding in the applicants’ favour.

Ultimately, by six votes to one, the Court concluded there had been no violation of Article 10, holding the interference was justified as necessary in a democratic society and proportionate.

Dissenting Opinion

Judge Cabral Barreto dissented, criticizing the majority for placing excessive weight on the existence of procedural safeguards. He considered that the final damages award was so high that it produced a chilling effect on public interest journalism, thereby breaking the requisite relationship of proportionality between the interference and its legitimate aim. On that basis, he concluded that Article 10 had been violated.

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