Media Law Update - December 2015
1. SORRY DOESN’T HAVE TO BE THE HARDEST WORD – OFFER OF AMENDS PROCEDURE REDUCES DAMAGES IN TV3 DEFAMATION CASE BY ONE THIRD
A defamation case in which an “offer of amends” was made, was recently ruled upon by the Irish High Court. Damages of €140,000 were awarded to the plaintiff, a solicitor who had been incorrectly identified in a TV3 broadcast as his client, another solicitor who had been convicted of a number of criminal offences. The Court held that the unqualified offer of amends, apology and offer to re-broadcast the apology mitigated the award by one third.
The procedure, which is well developed in the UK is seen as of potential benefit to both parties to a defamation action, allowing defendants to make early admissions and potentially reduce their exposure to traditionally high awards of damages, and allowing plaintiffs a fast track procedure to resolution while still having the opportunity to have any wrongdoing acknowledged.
Introduced in this jurisdiction by the Defamation Act 2009, the current offer of amends procedure permits a defendant who has published a defamatory statement to make an offer of amends in writing prior to delivery of their defence. They may choose to publish a correction or an apology and/or make a payment to the injured party. If the parties cannot agree on damages or costs, the court will decide the matter, taking into account the adequacy of any steps already taken to comply with the offer.
Prior to this case, the offer of amends procedure had not been tested in the Irish courts. Ms Justice O’Malley’s judgment gives a good sense of how the Irish courts are likely to approach the offer of amends procedure here, largely mirroring the jurisprudence of the UK courts.
Ms Justice O’Malley confirmed that the extent to which an offer of amends will mitigate damages, will depend on the facts and circumstances of a case. When considering the award, she took into account the gravity of the defamation, the extent of publication, the impact of the defamation and the conduct of the defendant. She noted in the hypothetical situation of a fully contested case, not before a jury, with no mitigating aspects, she would be inclined to award in the region of €200,000.
The Judge also noted that bad faith on the part of a defendant will defeat an offer of amends being relied upon as a defence and confirmed the position that an unqualified offer of amends, as had been made in this case, means accepting the allegations of defamation and the meanings pleaded by the plaintiff.
2. ANONYMOUS SOCIAL MEDIA USERS UNMASKED BY THE COURTS
Any remaining perception that social media users are immune to defamation laws is continuing to be eroded by the Irish courts. In recent months, two rare Norwich Pharmacal Orders have been granted, ordering websites to disclose details of the identity of the anonymous publishers of allegedly defamatory material.
A Norwich Pharmacal Order is a procedural remedy which can be sought by an injured party against a defendant who may not have committed any wrongdoing, but because of their involvement in the matter, may be able to identify the potential perpetrator of the injury. The purpose is generally to facilitate the commencement of proceedings and is often sought in internet defamation cases in the UK where an anonymous user utilises a website to publish defamatory content.
The Irish jurisdiction on Norwich Pharmacal Orders is less developed, having first been recognised in Ireland in the 1993 case of Megaleasing UK Ltd v Barrett. While the Irish courts previously indicated that these types of orders would be used “sparingly”, the two recent cases suggest an increased appetite for employing these orders to unmask anonymous users of social media publishing potentially defamatory material.
In Walsh v Twitter International Company, Judge Mac Eochaidh in the High Court ordered Twitter to provide the name of an anonymous user, who had published allegedly defamatory tweets about Mr Walsh, a whistle-blower who had taken part in an RTE Prime Time programme investigating procurement practices in Irish hospitals. Amid fears that the computer/phone used to send the alleged defamatory messages might be disposed of, the Court also granted an injunction prohibiting any person/persons having access to the anonymous Twitter user’s account from destroying the computer/phone from which the tweets were sent.
While Twitter was perceived in the past to be resistant to disclosing information about its users, a landmark 2011 case brought by a local UK council to the Superior Court of California, is believed to be the first time the company submitted to legal pressure to do so and seems to have influenced the company’s policy going forward. In that case, Twitter, which is incorporated in California, was ordered to disclose a private user’s details who had posted a number of allegedly defamatory comments about local councillors.
The second case was Petroceltic International plc v Aut O’Matic A8C Ireland Ltd & Anor. The defendants were owners of an investor blogging site. The plaintiffs alleged an anonymous blogger posted untrue and defamatory material about them and in order to issue proceedings, sought information from the defendant identifying the blogger as well as the removal of the blog from the website. In August 2015, Ms Justice Baker in granting the orders sought including the Norwich Pharmacal Order, directed the second defendant to notify the blogger of the Order and afford him/her seven days within which to furnish details of their identity to that defendant. If that was not done, Baker J ordered the second defendant to deliver to the plaintiffs on affidavit the identity of the blogger and any other relevant contact information within its power or control in respect of the blog.
While critics warn of the negative effects such Orders have on freedom of expression, they are undoubtedly an effective remedy to those who have been potentially defamed at the hands of someone hiding behind the perceived anonymity of the internet.
3. COURT OF APPEAL FOSTERS HOPE OF A THAW OF THE CHILLING EFFECT ON JOURNALISM OF HIGH AWARDS IN DEFAMATION CASES
Court of Appeal Verdict
The Court of Appeal has, in a recent landmark decision, overturned a “perverse” jury verdict, which awarded €900,000 in damages to a man who it said a national newspaper truthfully described as a drug dealer. The Court, comprising Mr Justice Hogan, Mr Justice Kelly and Ms Justice Irvine, unanimously allowed the appeal by the Sunday World and held that the High Court jury’s finding that Martin McDonagh was not a drug dealer was overwhelmingly unsupported by the evidence. A second allegation of loan sharking was remitted to the High Court for a retrial.
In making its decision, and having heard evidence as to the chilling effect of high awards of damages in libel actions on journalism, the Court affirmed the constitutional right of a newspaper to publish an allegation that is correct and noted that right could not be compromised by a jury verdict. It ordered Mr McDonagh to repay the interim payment of €90,000 awarded to him by the High Court and granted two-thirds of the High Court costs to the Sunday World together with full costs in respect of the appeal. A stay on these orders has however been granted pending an application to the Supreme Court for leave to appeal the decision overturning the entire award.
The decision represents a potential turning of the tide against traditionally high awards of damages in defamation cases and has been welcomed by media organisations.
The High Court Trial
In 2008, a High Court jury found that Martin McDonagh had been defamed by a 1999 Sunday World article which described him as a “Traveller drug king” following a Garda seizure in 1998 of cannabis and amphetamines worth IR£500,000 in Sligo.
Mr McDonagh issued High Court defamation proceedings in respect of the article published during his detention for questioning in connection with the Sligo seizure, following which he was ultimately released without charge. Although Mr McDonagh denied any involvement in drugs, the newspaper pleaded justification saying that the contents of the article were true. The jury found that the newspaper failed to prove that Mr McDonagh was a drug dealer and a loan shark but had proven he was a tax evader and a criminal.
Court of Appeal Considers the Evidence and Balances Constitutional Rights
In his judgment, considering the evidence as a whole, Mr Justice Hogan said he was coerced to the conclusion that it overwhelmingly showed Mr McDonagh was a drug dealer and the jury’s conclusion to the contrary in the High Court case was perverse and could not be allowed to stand.
He said the most striking feature of the evidence adduced was that Mr McDonagh challenged very little of the evidence in support of the drug dealing allegation. This comprised evidence from Gardaí to the effect that Mr McDonagh was aware that a drugs consignment was being planned, that the drugs were taken to the UK via Amsterdam and that the operation was financed by Mr McDonagh’s brother Michael. It was also pleaded in justification that Mr McDonagh had IR£410,000 in a bank account when he was claiming social welfare payments. Mr McDonagh’s evidence was that he had never been charged or convicted in relation to the seizure of drugs in Sligo or any other drugs offence and denied making statements in Garda custody.
In presenting the appeal, Eoin McCullough SC who acted for the Sunday World argued that the jury’s findings were contrary to the weight of evidence before it, including from a number of Garda witnesses. He commented on the chilling effect on journalism of high libel awards, which in this case was “excessive and disproportionate” while noting the comparable maximum damages award at the time was €400,000 awarded to former Government Minister Pronsias de Rossa.
Higher awards have been made in subsequent defamation cases including an award of €1.87m to public relations consultant Monica Leech, which has since been reduced by the Supreme Court to €1.25m. The latter award is also the subject of a challenge before the European Court of Human Rights, as discussed below.
The Court of Appeal considered the question of the appropriate balance to be struck between two fundamental constitutional rights, namely, the right to one’s good name (Article 40.3.2) and freedom of expression (Article 40.6.1).
Mr Justice Hogan noted the high value ascribed to discussions by the media of matters concerning serious criminality. Although he noted the constitutional right to freedom of expression does not permit the media to publish defamatory material, if the article was true in substance and fact, a jury verdict, which was in essence perverse, could not compromise that constitutional right. While the evidence regarding the allegation of loan sharking was more limited, Mr Justice Hogan noted it may have been open to a properly instructed jury to find in Mr McDonagh’s favour on that point and ordered a new trial.
Challenge in Europe
The Court of Appeal decision comes amid a challenge to the European Court of Human Rights regarding the discretion given to Irish juries in defamation cases and concerns from media organisations that the system for dealing with claims involving the press and media is unsatisfactory.
The challenge, being pursued by Independent Newspapers, concerns the award of €1.87 million made to Monica Leech in 2009 referred to above, which was reduced on appeal to the Supreme Court to €1.25 million. Independent Newspapers contends that permitting such large awards is incompatible with the right to freedom of expression under the European Convention of Human Rights and is a consequence of inadequate domestic safeguards to mitigate against disproportionately high awards of damages.
Although Independent Newspapers previously brought an unsuccessful challenge to the ECHR following the substantial award of damages made to Pronsias de Rossa, since both the De Rossa and Leech cases, the Defamation Act 2009 has been enacted. Judges are now required to give directions to juries on damages as well as permitting the parties to make submissions in that regard.
The European Court of Human Rights interpretation of the new legislative provisions will be followed with interest when it reconsiders whether Irish defamation laws are compatible with the European Convention of Human Rights.
In the meantime, it remains to be seen whether Mr McDonagh’s appeal to the Supreme Court will gain traction. While leave to appeal has yet to be granted and the Supreme Court can only consider further appeals on matters of public importance, Mr McDonagh is arguing there is a bona fide issue to be considered because the Court of Appeal set aside as perverse the decision of a jury and substituted its own verdict for that decision. His counsel noted that the court had found Mr McDonagh was a drug dealer in circumstances where he has never been convicted of such a charge and where a jury had found he was not.
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