A judgment that chills media's zeal to inform the public

Very few people will have mourned the affirmation by the Supreme Court of the £300,000 award to Proinsias De Rossa against the Sunday Independent. That newspaper has caused such indiscriminate hurt and harm, almost entirely for commercial gain and in the pursuit of personal agendas, that many will feel it deserved what it got.

The article by Eamon Dunphy which gave rise to the libel action also deserved what was coming to it. It was reckless, characteristically expressed in wildly extravagant language and founded on a deep well of ignorance of the subject it purported to address - the possibility of links between the Workers Party, of which De Rossa was then (in 1992) president, and criminality.

It was not that the issue addressed was unimportant - whether it was acceptable that a party with such possible links with criminality should be then considered a suitable partner in government (December 1992). Indeed Dunphy was the only commentator at the time to address that relevant issue, but the manner in which he did so made this case an unlikely springboard for a new jurisprudential initiative on libel and press freedom. What we got from the Supreme Court last Friday, however, was a decision that will chill whatever remaining zeal there is in the media to push out the frontiers of what the public can be told.

As the majority judgment of the court, delivered by the Chief Justice, Mr Justice Liam Hamilton, acknowledged early on, what is at issue in libel is the balancing of two opposing Constitutional rights: the right to one's good name and the right to freedom of the press.

However, having made that acknowledgment, the judgment goes on to ignore entirely this issue of balancing, at no stage addressing the consequences of the £300,000 award in the High Court to the issue of press freedom.

By the way, the issue of press freedom is not only or even mainly a matter of concern for journalists. It is not freedom for journalists that is at stake, but the freedom of the public to get information about what is going on within institutions of power that are supposedly accountable to the public.

In the submissions on the appeal against the £300,000 award in the High Court, the Supreme Court was referred to a number of recent English cases (notably a 1993 case brought by the British television presenter, Esther Rantzen, against the Mirror Group) which held that the test to be applied in considering the level of an award in libel cases was whether a reasonable jury could have thought that the award in question was necessary to compensate the plaintiff to re-establish his (sic) reputation.

The European Court of Human Rights affirmed this test in another celebrated case. (This one involving Count Nikolai Tolstoy Miloslavsky and Lord Aldington, who was accused (wrongly) by the count of having been involved in the massacre of 70,000 Yugoslavs by the Russians at the end of the second World War.)

But without advancing any reason whatever, the Supreme Court majority rejected this obviously sensible test (whether a reasonable jury could have thought the award was necessary to compensate for the wronged reputation) in favour of a traditional and far more restrictive test. This was: whether the award made by the jury was so disproportionately high, having regard to the injury suffered, that no jury, acting reasonably and applying the law to all the relevant considerations, could reasonably have made such an award.

Surely, a balancing of the opposing constitutional rights - the right to one's reputation and the right to a free press - would have favoured the less restrictive test?

(The only basis offered for opting for the restrictive test was a remark made in a previous case by the former Chief Justice, Mr Justice Thomas Finlay, about "the unusual and emphatic sanctity" of jury awards.)

Another issue considered by the Supreme Court was whether the judge and counsel in a libel action should advise the jury about the appropriate level of damages with reference to other libel cases and to awards in personal injury actions.

Again the court rejected the precedent in a seminal English case (a case which it cited as an authority to be followed on another issue) and said that a jury would be "buried" in figures if this was permitted and, again without any argument or reasoning, concluded that "the giving of such figures, even though only by way of guideline, would constitute an unjustifiable invasion of the province or domain of the jury".

On the issue of a comparison between levels of awards in personal injury actions and awards in libel actions, the court drew attention to the established position that awards in libel actions were not just in compensation for the harm caused to reputation but also, in themselves, a vindication of the reputation harmed.

It quoted in support of this proposition a colourful passage from a judgment of Lord Hailsham, formerly the Tory MP Quentin Hogg. Hailsham said: "In the case of a libel driven underground, emerging from its lurking place at some future date, he (the defamed person) must be able to point to a sum awarded by a jury sufficient to convince a bystander of the baselessness of the charge." But surely in the balancing of the two opposing Constitutional rights, it might be argued that it would be adequate for the person defamed to point a bystander to the vindication by a court?

Again, the point was not considered.

Quite rightly, the Supreme Court alluded to the seriousness of the libel, the dogged refusal of Independent Newspapers to apologise, the assertion of the truth of the libel in the course of the trials, the hostile manner of the cross-examination of De Rossa and the concluding address by counsel for the newspaper which sought to cast further opprobrium on De Rossa's character. All these were aggravating factors which, quite rightly, were taken into account.

However, what was done will do great damage to press freedom, a consideration not considered at all, apparently, by the four judges in the majority on the Supreme Court (these were Justices Hamilton, Barrington, Lynch and Murphy - Ms Justice Susan Denham dissented).

That is, if the judgment stands.

A consolation may be that only one of the these four judges will be on the court after the early part of next year (Justices Hamilton, Barrington and Lynch are due to retire).

In addition, there is reason to believe that the person most recently appointed to the court, Mr Justice John Murray, will take a more liberal attitude. It was he, as Attorney General, who took the initiative on libel reform by asking the Law Reform Commission to undertake a study of the subject in 1988.

Schadenfreude aside, last Friday was a bad day for press freedom, for Irish freedom.