Leech v Independent Newspapers (2): defamation award must be proportionate to competing constitutional rights

defamation-maniaAn award of damages in a defamation case must be proportionate to the competing constitutional rights of the citizen to vindicate her good name and to the right to freedom of expression (here).

Background

In 2004, the Evening Herald published a series of seven articles over two and a half weeks which suggested that Ms Leech, a married woman with two children, betrayed her husband and children by having an adulterous affair with a Government Minister, to secure Government contracts and advance her career. At trial, a jury awarded her €1.8m in compensation. Independent Newspapers appealed that decision on the grounds that the award was excessive, not proportionate to the damage caused and interfered with its constitutional rights to freedom of expression.

Supreme Court

Citing authority, Dunne J held that an award for defamation cannot be compared to one for personal injury, and an appellate court should only set aside a jury award where it is so unreasonable to be disproportionate. Although a defamation award may contain a vindicatory or punative element, any award must balance the constitutional right to freedom of expression and the constitutional protection of every citizen’s good name.

Although each case must be assessed on its circumstances, the courts are developing “a rough judicial tariff” (McMahon and Binchy), such as very serious and most serious, to assist in examining awards.

In this case, the Plaintiff went from being someone not known by the public to someone who was notorious. The Defendant ran a defence of justification and fair comment, which failed; it had cropped and manipulated accompanying photographs; and it offered no apology. The impact of the defamation on Ms Leech was far reaching: her business collapsed and her Government contracts were not renewed, one of her sons had to change school during Leaving Certificate year, and she was personally abused in her home town–it affected every aspect of her family and professional life.

Dunne J held that the case was very serious and towards the higher end of the scale; however, it was not one of the most serious libels. In those circumstances, and by comparison to awards in previous cases, the Court set aside the award of €1.8m for one of €1.25m.

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