,ULVK([DPLQHU 7XHVGD\ $QDO\VLV  7KH&RXUWRI$SSHDOȁVUXOLQJLQIDYRXURIDWDEORLGQHZVSDSHULQWKHFDVHRIDȣDZDUG DJDLQVWLWKDVJLYHQQHZKRSHIRUFDPSDLJQHUVIRUSUHVVIUHHGRPZULWHV 'DQ%XFNOH\ -XU\UHPDLQVRXWRQ OLEHODZDUGVE\MXULHV

DON’T believe that we are ever going to have first amendment protection like in the US,” lamented RTÉ’s directorȃ, general Noel Curran to an committee last year. We may, though, be getting a little closer to American style freedom of the press, if last week’s decision by our new Court of Appeal is anything to go by. Curran was addressing the Oireach- tas Committee on Transport and Com- munications about RTÉ’s financial settlement in the wake of the so-called Pantigate affair. RTÉ paid out €85,000 to five people over defamation claims that followed remarks made by entertainer and gay rights activist Panti Bliss on The Saturday Night Show. Like many media organisations be- fore and since, RTÉ were minded to settle rather than fight the defamation allegations. They also aired an apology, prompting hundreds of complaints, a Dáil debate and an address by MEP Paul Murphy at the European Parlia- ment for doing so. It was not a good day for freedom of the press. Monday, October 19, was somewhat better when the Court of Appeal over- turned a €900,000 damages award against the Sunday World which a judge described as “perverse”. It concerned a case taken in the in 2008 by Martin McDonagh, a member of the Travelling community, against the newspaper for calling him a ‘drug king.’ The appeal would normally have been heard by the Supreme Court but went to the new Court of Appeal in- stead. The unanimous decision of the three-judge court was to set aside the jury award. In the judgement last Monday, the appeal court – comprising Mr Justice , Ms Justice Mary Irvine and Mr Justice Gerard Hogan – unani- mously allowed the appeal of the news- paper. It found the allegation of drug dealing was substantiated and dismissed that part of his claim. However, it decided that there should be a re-trial in re- lation to a second allegation of loan sharking. Delivering the decision of the court, Mr Justice Hogan said it was clear the jury verdict, so far as it concerned the drug dealing allegation, could not be allowed stand. “Viewed objectively, the evidence overwhelmingly pointed to the con- clusion the plaintiff [McDonagh] was, indeed, a drug dealer associated with 0DUWLQ0F'RQDJKDUULYHVDWWKH)RXU&RXUWVIRUD&RXUWRI$SSHDOKHDULQJRIKLVGHIDPDWLRQDZDUGDJDLQVWWKHɧ6XQGD\:RUOGɨ 3LFWXUH&RXUWV&ROOLQV the drugs seizure in Tubercurry,” he said. If the allegation was correct, he said, flects poorly on our legal system,” said newspaper or other media organisation the world. Prior to the Kinsella case, the claim is £200,000 (€280,000). For years Ireland gave unlimited dis- the newspaper had a constitutional NewsBrands Ireland, in a statement. may be enough to force it to shut its most compensation was the €1.87 mil- It is also an uncomfortable truth that, cretion to juries in assessing damages. right to publish this, and that right “Defamation law in Ireland presents doors, potentially putting hundreds of lion won by PR consultant Monica in the Irish civil courts, a bruised ego is Such was the level of disproportionate could not be compromised by a jury ver- a huge challenge to freedom of ex- people out of work. Leech over a series of articles in the a far more valuable commodity than a jury awards and the exorbitant costs of dict “which was, in essence, perverse”. pression. The retention of the jury sys- The original decision in the McDon- Evening Herald in 2004 which falsely missing limb — or worse. libel actions that a new defamation re- That is very strong language from the tem creates delays and also a lack of agh case is a small proportion of that suggested that she had had an affair The case of Alan O’Gorman illus- gime was introduced in 2009 to shep- Bench. In the first instance, describing certainty for publishers who have no given to a businessman awarded €10 with a government minister. Indepen- trates this well. At the age of 21, Alan, herd, in the words of one Irish law firm, the jury’s decision as ‘perverse’ is un- way to ascertain the extent of their po- million in November 2010. dent Newspapers characterised the from Co Meath, had his stomach need- “the wandering sheep” sitting on Irish heard of, but, more importantly, ex- tential liability. The award was made to Donal Kinsel- award as a glaring example of the need lessly removed by surgeons at St Vin- juries. plicit judicial recognition of a constitu- “Ireland is the only country in Eu- la, who sued his former employer, Ken- for the review of Ireland’s defamation cent’s Hospital in Dublin who incor- The new act introduced a new rem- tional right to publish a well founded al- rope where defamation actions are mare Resources, over a press release it laws. rectly diagnosed him with cancer. edy into defamation law. This permits a legation is rare, to say the least. heard before a jury. In Britain, trials sent out concerning an incident where Legislative changes happened the While Martin McDonagh’s good name plaintiff, instead of suing for damages, NewsBrands Ireland, the voice of our are held without a jury unless the court he had sleep-walked while on company same year but, despite improvements had been deemed worthy of €900,000, to seek an order in the newspaper industry, welcomed the orders otherwise.” It also pointed out business in Africa. under the current regime, high awards O’Gorman was awarded just €450,000 - that the publication publish an apology, decision but cautioned that it, once the disparity between awards for defa- The amount of the award was so stag- remain the rule rather than the excep- half that amount. correction or retraction and desist from again, highlighted the inadequacies of mation and those given for personal in- gering that it prompted the judge to re- tion. Along with that, there is still no Other high awards for libel include republishing the defamatory material. our defamation laws and the urgent jury. mark: “Correct me if I’m mistaken... but requirement that actual loss to busi- the €750,000 given to billionaire busi- The action is heard without a jury. need for further reform, following such “To put the case in perspective, the you have awarded compensatory dam- ness or personal reputation has to be nessman Denis O’Brien in 2006 against In cases heard by a jury, the new act attempts in the 2009 Defamation Act. jury award of €900,000 to Mr McDonagh ages of €9 million and aggravated dam- proven. All the plaintiff has to do is Mirror Group Newspapers. The also instructs a judge to direct the jury It noted that the Sunday World article is a multiple of the level of awards in ex- ages of €1 million.” It was - and still is - make the claim. O’Brien award had originally been as to the amount of compensation they first appeared in 1999, which meant that tremely serious personal injury cases,” the highest libel award in the history of This is in stark contrast to the UK, IR£250,000 but MGN appealed it on the may award. It had been expected that the newspaper had been fighting the said NewsBrands Ireland. the state. Counsel for the defendants, where someone suing for libel has to grounds that the award was excessive. this would lead to a reduction in the defamation case - in one form or an- Such high jury awards are not un- Kenmare Resources, described the total actually prove that there was “serious The matter was sent for retrial on the level of damages awarded in the future. other - for almost 16 years. common in Ireland and the fact is that of €10m as “off the Richter scale”. harm” to their reputation as a result issue of damages only for a new jury — But - considering awards made under “Such a delay does not benefit either even a single a judgement involving Yet Ireland has, for years, played host of the publication and where the who knew nothing about the previous the new legislation - the jury is still out the plaintiff or the newspaper and re- hundreds of thousands of euro against a to some of the highest libel awards in maximum award for such a proven award — to multiply it. on that. 2QO\DVWURQJ(8FDQDYHUW6FK¤XEOHȁVJDWKHULQJVWRUP

UROPE’S crisis is poised to enter ist German-dominated northeast and preparing for the battles ahead. its most dangerous phase. After