The difference in the amount of money awarded in libel damages in this jurisdiction compared to our European counterparts is staggering.
In the Netherlands, libel awards are, on average, between €1,000 and €5,000, while in Sweden €15,000 would be viewed as a successful outcome in the wake of a serious libel.
There are caps on libel awards in Austria (€20,000 for most types of cases), and in Malta (€11,646).
The highest award ever in Portugal was €75,000 and it was later deemed by the European Court of Human Rights to be disproportionate.
Such awards, the court said, “inevitably risked dissuading journalists from contributing to public debate on questions of general interest”.
In this jurisdiction, a High Court jury in 2010 awarded €10 million to a businessman who successfully argued he had been defamed by a press release issued by his employer.
In a case involving Independent News & Media, a PR executive who was awarded €1.87 million by a jury in the High Court had her award reduced by the Supreme Court – to €1.25 million – even though the court noted that the libel was not at the most severe end of the scale.
That award is being appealed to the European Court of Human Rights but, meanwhile, it is having an undeniable impact on the media as well as the attitude of complainants and their legal representatives.
Continental Europe has a tradition of criminal libel, where serious libel was punished by prosecution rather than damages.
Hence the lower damages regime. The use of criminal sanctions is now frowned upon, save in the most serious of cases.
In the UK, awards are higher than on the European mainland, but still substantially below those in this jurisdiction.
English and Welsh case law has set an effective cap of approximately £250,000 (€295,000), though most cases involve damages substantially below that.
In the US, it is more difficult to prove a defamation case, especially against public individuals, but successful complaints can lead to multi-million dollar awards.
US law differs from Irish and UK law in that, on this side of the Atlantic, the obligation is on the defendant – usually the publisher – to justify or prove the truth of a statement alleged by the complainant to be defamatory.
This “presumption of falsity” led to concerns about so-called “libel tourism cases” ending up in the London courts rather than in the US.
In 2010, the US, in response, made UK libel awards unenforceable there if they did not comply with US free speech laws.
The defamation regime in England and Wales was substantially reformed with the 2013 Defamation Act, one of the main elements of which was the introduction of a serious harm threshold for defamation complaints, a measure which does not exist in this jurisdiction. (The new law does not apply in Scotland and Northern Ireland either.)
‘Raise the bar’
The 2013 law stipulates that “a statement is not defamatory unless its publication has caused or is likely to cause serious harm to the reputation of the claimant”.
The object of the measure was to “raise the bar” on what kind of complaints the courts would entertain and the measure is widely recognised as having brought about a sharp drop in actions going to court.
The new law also stipulates that, for companies, harm is not “serious harm” unless a corporate body can show it has caused or is likely to cause serious financial loss.
The new law also directly targeted the libel tourism issue by stating that parties seeking to issue proceedings needed to show that it was “clearly the most appropriate place in which to bring” the action.
The 2013 law also changed the defences that are available in the jurisdiction of England and Wales, by in particular clarifying the honest opinion and public interest arguments that can be made by defendants, and strengthening the law in those areas.
However, the onus is still on the defendant to justify and defend the statement complained of.
Unlike here, the default position now in England and Wales is that defamation actions do not involve juries, although they can in exceptional cases. Juries continue to be involved Scotland and Northern Ireland.
In the US, it is common for jury verdicts against media outlets to be overturned upon appeal.
In this jurisdiction, an offer of amends can be a defence but not if the defendant should have known that the statement complained of was defamatory.
The situation is different in England and Wales, where there has to be actual malice, rather than negligence, before the offer of amends defence is no longer available.
Question of costs
A proposed measure currently being considered in the UK, which is being campaigned against by the major media groups there, would have publishers paying claimants costs even where they had successfully defended themselves.
The provision, which has yet to be commenced, is contained in Section 40 of the Crimes and Courts Act, 2013, and would apply to all media organisations that did not agree to sign up to a recognised media regulator.
Given that costs in UK defamation cases are, as they are in this jurisdiction, a major issue for media organisations when considering libel matters, the proposed measure is widely viewed by the media as potentially disastrous.
The objective of the measure is to try to pressurise the industry into signing up for state-approved regulation.
Belfast defamation solicitor Paul Tweed says the self-regulated system here, with the Press Ombudsman and Press Council, is far superior to the one that operates in the UK.
Here a defence of “fair and reasonable publication”, which is outlined in our 2009 Defamation Act, is available to organisations that are part of our press regulation scheme.