Independent Newspapers' appeal to the European Court of Human Rights (ECHR) against a massive €1.25 million defamation award is a welcome, important – and expensive – stand for freedom of expression that deserves acknowledgment. At stake is not whether Monica Leech was defamed, and she was, badly, but the deeply chilling effect on press freedom of such monumental awards and whether this one – albeit reduced from an even more eye-watering €1 .8 million by the Supreme Court – bears any relation to the damages suffered by a plaintiff.
Our defamation regime, despite notional reform in 2009, is one of the most oppressive in the world. But its effects go largely unreported as papers, already suffering from declining circulations and advertising, pay out huge sums in private settlements out of fear of ending up in court at the unpredictable mercy of the limitless discretion of runaway juries.
The highest defamation award previously upheld by the Supreme Court was that in 1991 in the De Rossa case, £381,000, while personal injury general damages for pain and suffering are limited by the courts to €450,000, awarded only in the most serious cases. In the UK, meanwhile, a ceiling of £200,000 was set a decade ago for damages for the most serious type of defamation.
Article 10 of the European Convention on Human Rights upholds freedom of expression and has been interpreted by the court as limiting the scale of damage awards to protect free speech and so that they bear some relation to the damage caused (Tolstoy Miloslavsky v UK). That the Supreme Court should appear not to have taken either consideration into account is bewildering.
Media organisations and freedom of expression are also under threat on another front – unfortunately at the hands of the ECHR. Recently, in Delfi AS v Estonia, the court found, despite EU legislation and Council of Europe declarations to the contrary, that an internet hosting site may be held liable for defamatory comments posted on it by third parties even if the site acts to take such comments down promptly .
The result may be to force responsible site hosts, like many newspapers, to close their articles to comment altogether, cutting off direct interactions with their readers, one of the great and welcome innovations of the online age.
The judgment is an unfortunate throwback to a long history of attempts by states to control the press. As two of the judges, András Sajó and Nona Tsotsoria, point out in their dissenting opinion: "The imposition of liability on intermediaries was a major obstacle to freedom of expression for centuries. It was the printer Harding and his wife who were arrested for the printing of the Drapier's Letters, and not the anonymous author (Jonathan Swift), who continued to preach undisturbed. It was for this reason that exempting intermediaries from liability became a crucial issue in the making of the first lasting document of European constitutionalism, the Belgian constitution of 1831. This is the proud human rights tradition of Europe that we are called upon to sustain."