Journalism will be the loser if libel damages remain a lottery
The unpredictability of defamation juries is hitting the news media hard at a time when we mustn’t stop the press, writes John Maher
LAST week a Dublin jury awarded €225,000 to a truck driver who had been involved in a fatal collision in Waterford in 2005. On a dark October morning, Stephen Kelly had driven to the woods near Ashtown Cross, where he was due to pick up a load of timber. To make the final turn into the narrow laneway into the woods, he first swung his truck on to the wrong side of the road. For nearly half a minute, his vehicle was a steel roadblock across the whole width of the carriageway, and in that time a small car struck the side of the truck, and 27-year-old Graham Norris lost his life.
The death of Mr Norris was, as might be expected, a devastating event for his family. However, some 12 years later, a jury determined that there were damaging consequences for the truck driver too. In awarding €225,000 to Mr Kelly, they accepted that he deserved compensation for what the Sunday World had said about him. A double-page spread in the newspaper reported that the family claimed he had shown no sign of remorse for his role in Mr Norris’s death, and suggested he gave misleading evidence in a criminal case where he was acquitted on a charge of dangerous driving causing death. Mr Kelly challenged these assertions, while the newspaper put forward evidence that its claims were true.
Undoubtedly the jury faced a difficult task, assessing the impact of the newspaper articles on Mr Kelly’s life and reputation, against the tragic backdrop of the crash and the effect on the bereaved Norris family. What no one outside the jury room can know, however, is how the decision to find in favour of the truck driver led to a conclusion that the effect on him was worth €225,000. The case highlighted, once again, how unpredictable the libel law regime can be, when it comes to the crucial final part of the trial process. Even the most seasoned observers who believe they know which way a jury is leaning during a trial will have no idea what kind of figure might be awarded at the end.
This unpredictability is, of course, the very opposite of what law is meant to be. Laws are essentially rules created by societies to govern behaviour, and they are only effective when people know the consequences of stepping outside those rules. We can know in advance the consequences of being found dodging our taxes, or pulling the emergency chain on a train just for a lark. But it is becoming increasingly obvious that uncertainty around libel awards has made the practice of journalism more difficult than ever.
Media companies are generally anxious for juries to be taken away from the defamation courts or, at the very least, to be denied the function of assessing compensa- tion. In their early incarnations, juries were small groups of medieval townsfolk, gathered by travelling magistrates to report on what they had heard about whatever episode was to be judged. Their evidence was probably a mixture of rumour and hearsay, but considered as good as anyone else’s. In the libel courts of Ireland and England, juries also became prized as a way for a community to give its assessment as to whether a person’s reputation had been damaged. There may have been a rationale for that, but it has never been clear why the jury’s task was expanded to assessing compensation too.
However, limiting the libel jury’s role to a verdict, and leaving the compensation issue to judges, might not be the magic bullet that media companies seek. Damages awards calculated by judges have also contributed to the chilling effect on the media. In late 2015 a blunder lasting nine seconds of screen time on TV3 (where a solicitor was misidentified as his client, the fraudulent Thomas Byrne) attracted an award of €140,000 from a High Court judge — more than €15,000 for every second of the offending broadcast.
The Department of Justice has initiated a review of the Defama- tion Act 2009 to see if it can be improved. Some of its innovations, such as a short-cut to declaratory vindication or its ‘offer of amends’ procedure, have proved unattractive to plaintiffs or unworkable in practice. It may be that the review will consider the level of awards elsewhere; the International Press Institute has pointed out that in the Netherlands, libel awards are between €1,000 and €5,000, while plaintiffs in Sweden can expect no more than €15,000, a cap of some €50,000 applies in Austria, and Portugal’s largest ever award was €75,000.
But perhaps the most important changes in the years since the 2009 Act came into force have been events outside the courtrooms. The finances of traditional news media have been under pressure, and they have been struggling to regroup and make online news pay its way. Meanwhile others have stepped into the internet free-for-all, with extraordinary results.
In Britain, the Brexit campaign forged ahead with little more than slogans which somehow went unchallenged, and even its leading supporters have been shown since to have had no real idea of how it might work. In the US, Donald Trump built his presidential campaign on a cavalier disregard for facts or policy planning. Since coming into office he has spent much of his time deriding experienced news organisations, and making space in the White House press room for the bloggers and cheerleaders who reflect back to him his own vision of himself. If ever there was a need for a genuine effort to bolster serious journalism, it is now.
There is no doubt that the sheer unpredictability of the libel process has become a huge burden on media companies, an unpredictability that makes it increasingly difficult to function. And the question for policymakers today is, to what extent do we value our media? Do we care enough to make sure the media can operate effectively? And if we do, can we at the very least find a predictable way to balance the individual’s rights against society’s need for serious, independent and effective journalism?
‘In Holland, libel awards are between €1,000 and €5,000’