ECHR and Media Law
Paula Mullooly
Simon McAleese Solicitors
3 Fitzwilliam Court
Upper Pembroke Street
Dublin 2
t +353 1 664 4050
f +353 1 664 4060
e mail@simonmcaleese.com
w www.simonmcaleese.com
INTRODUCTION
It is difficult now to encounter a media case before the Irish courts where extensive reference
is not made to the European Convention on Human Rights and the case law of the ECHR.
Article 10 relating to Freedom of Expression has long been the favourite of defence lawyers
but Plaintiffs are now making their own comeback with increased use of Article 8 relating to
Privacy. The balancing of these two rights has proved as difficult under Convention Law as it
has under Constitutional Law.
DEFAMATION
Independent News and Media v Ireland
De Rossa v Independent Newspapers
The only Irish media case to be heard before the European Court of Human Rights is that of
Independent News and Media v Ireland. As I’m sure you’re all aware that case arose out of
the decision of the Supreme Court in de Rossa v Independent Newspapers.
In July 1997, a jury awarded the former Government Minister, Proinsias de Rossa, damages
of IR£300,000 (€380,921) for a libel in an Eamon Dunphy article published in the Sunday
Independent in December 1992. The jury had decided that the article falsely alleged that Mr
de Rossa was involved in or tolerated serious paramilitary crime, was anti-Semitic and
supported violent communist oppression. The newspaper appealed on quantum only, arguing
that the award was excessive and disproportionate to any damage done to Mr de Rossa’s
reputation.
Importantly, the Sunday Independent sought to challenge the system under Irish
constitutional and defamation law whereby juries determine the size of the award without any
realistic guidance by the trial judge. They alleged that this procedure in practice leads to
erratic and often excessive awards. In 1997, the Supreme Court had held in Dawson v Irish
Brokers Association (Unreported, Supreme Court, 27 February 1997) that:
“Unjustifiably large awards, as well as the costs attendant on long trials, deal a blow
to the freedom of expression entitlement that is enshrined in the Constitution”.
The newspaper sought to rely on U.K. and European case law on Article 10 of the Convention
in support of its challenge to Irish defamation practice.
Its arguments were as follows. In 1993, the Supreme Court had upheld an award given to a
barrister, Mr Donagh McDonagh, against the Sun newspaper for a very grave defamation. In
McDonagh v News Group (Unreported, Supreme Court, 23 November 1993) the Supreme
Court had determined, however, that the award of IR£90,000 (€114,276) was at “the top of
the permissible range”. The newspaper argued that it was wholly illogical that a jury should
determine the award in the de Rossa case without having the benefit of this information. Only
if they were armed with knowledge of the Supreme Court’s views as to an appropriate award
for a serious libel could the jury properly determine the level of compensation to which Mr de
Rossa was entitled. The appellants also went on to argue that the jury should also be told the
level of awards in personal injury actions so as to make appropriate comparisons with
damage to reputation. If such guidelines and procedures were not in place, the legal system
did not adequately protect the defendant’s right to freedom of expression. The newspaper
was supported in this view by two decisions on Article 10 at U.K. and European level.
In Rantzen v Mirror Group Newspapers [1993] 4 ALL ER 975 the Court of Appeal in England
held that:
“to grant an almost unlimited discretion to a jury failed to provide a satisfactory
measurement of deciding what was necessary in a democratic society for the
purposes of Article 10”.
Thus, in the U.K., juries were given, where appropriate, both financial guidance and
comparisons with personal injury awards.
The European Court of Human Rights endorsed this view in Tolstoy Miloslavisky v U.K.
[1995] 20 EHRR 442. In that case the Court considered a defamation award of Sterling
£1.5m. It stressed that these damages had been awarded by a jury which had received no
specific guidelines relating to its assessment of damages. The court concluded that:
“Having regard to the size of the award in the appellant’s case in conjunction with the
lack of adequate and effective safeguards at the relevant time against a
disproportionately large award, the court finds that there has been a violation of the
applicant’s rights under Article 10 of the Convention”.
In the event, the Supreme Court in De Rossa -v- Independent Newspapers [1999] 4 IR 432
(by a 4 to 1 majority) felt that, given the serious nature of the libel of Mr de Rossa, the jury
were “justified in going to the top of the bracket” and that the award was “not disproportionate
to the injury” suffered by Mr de Rossa. In the majority decision, the Chief Justice stated that
the law must reflect a due balancing of the constitutional right to freedom of expression and
the constitutional protection of every citizen’s good name. He held that the obligations arising
from the provisions of the Constitution and the Convention were met by the existing law of the
State which provides that the award must always be reasonable and fair and bear a due
correspondence with the injuries suffered with the requirement that if it was disproportionately
high, it would be set aside on appeal. On the issue of guidance to juries, accepted in the U.K.
and endorsed at European level, the Chief Justice stated:
“While the aforesaid changes of practice where therein described as ‘modest’ they
are not only important but fundamental and radically alter the general practice with
regard to the instructions or guidance to be given to a jury as to the manner in which
they should approach the assessment of damages in a defamation action. It had
been the invariable practice in the past that neither counsel nor the judge could make
any suggestion to the jury as to what would be an appropriate award”.
While giving due consideration to the approach of the courts in England, he concluded that
the giving of figures to a jury, even though by way of guidelines only, would constitute an
unjustifiable invasion of the providence and domain of the jury, which would not be
countenanced.
The dissenting judge, Mrs Justice Denham, would have reduced the award to Mr de Rossa to
£150,000 (€190,500). She favoured giving guidelines to the jury and stated:
“In general, I favour the giving of guidelines to a jury on the level of damages.
Information does not fetter discretion. If this is perceived as a more active approach
by the judge I believe it is in the interests of justice. The legislature could legislate but
in its absence more guidelines would, I believe, help juries in the administration of
justice. Guidelines would assist in achieving consistent and comparable decisions,
which would enhance public confidence in the administration of justice. There is a
benefit to the administration of justice in such an approach. Whilst maintaining at all
times the paramount position of the jury in determining the damages, specific
information would aid decision making and the maintaining of an appropriate
relationship to the awards of damages in other areas. Such information as is deemed
appropriate could be given in more specific guidelines”.
In a case the year following the de Rossa decision, the Supreme Court again upheld the
practice of issuing jury instructions which leave the question of quantum at large; O’Brien v
MGN Limited (Unreported, Supreme Court, 25 October 1999). The court did, however,
overturn an award of IR£250,000 (€317,435) as excessive and ordered a retrial on the level of
damages. (A copy of this judgment was furnished to the ECHR as well as a transcript in the
case of Finbarr Hill v Cork Examiner).
The decision of the majority of the Supreme Court in de Rossa has been criticised. Eoin Quill
of the University of Limerick has said:
“The principles (upheld by the Supreme Court) are the traditional rules of defamation
at common law and do not differ significantly from the principles applied by the
European Courts in Tolstoy which were held to violate Article 10 of the Convention.
The bare assertion of proportionality by Hamilton C.J. is surely inadequate if the
substantive legal principles are largely the same as those which were held to lack
such proportionality in Tolstoy. The constitutional gloss, by way of a backdrop in Irish
law, is meaningless if there is no change in the substantive principles”.
European Court
Independent Newspapers brought an action against Ireland to the European Court of Human
Rights arising out of the decision of the Supreme Court
The State argued that the proceedings were inadmissible because Independent Newspapers
had not challenged the legality of the procedure whereby juries are charged before the Irish
courts. The court rejected this, on the basis that the Supreme Court in de Rossa had
expressly considered and rejected the submission that the applicable principles violated
article 40.6.1.
In its substantive defence, the State relied on the latitude given Ireland by the ‘margin of
appreciation’, stressed the difference in size of the award against Independent Newspapers
and that made in Tolstoy Miloslavsky and argued that there were significant differences
between the UK and Ireland both in the guidelines given to the jury and in the role of the
appellant court.
Independent Newspapers argued that the circumstances of de Rossa could not realistically
be separated from those in Tolstoy Miloslavsky. If the law in England at the time of that case
was a breach of article 10, then so must the law in Ireland. On the role of the jury and the
appellate court, they contended:
“It is destructive of the rights of the applicants under article 10 of the Convention to
refuse to allow the original determining body (in this case a jury) to be informed of, still
less to take account of, relevant matters, while at the same time to allow those matters
to be taken into account by an appeal court, but only in determining whether an award
is to be set aside by the very high standard that must be met before that result pertains.
The court determined in Tolstoy Miloslavsky that a lack of adequate and effective
safeguards against a disproportionately large award is a breach of rights under article
10. A system which not only permits but requires the determining body to be deprived
of information relating to matters that are acknowledged to be relevant can never be
thought to provide adequate and effective safeguards against disproportionately large
awards.”.
Third Party Intervention
Under Rule 61.3 of the Rules of the European Court, interested parties may, with the approval
of the court, provide written observations in support of an alleged victim. A number of
newspapers did this and their submissions were accepted by the court. The third parties do
not participate in the oral hearing before the court, although the parties can comment upon
the submissions.
Decision
While the State’s arguments on the “margin of appreciation” and on the respective sizes of
the awards in de Rossa and Tolstoy Miloslavsky are superficially attractive, it is difficult to see
how the system of directing juries under Irish law differs in any significant respect from that in
the United Kingdom which the court ruled was objectionable in Tolstoy Miloslavsky.
The case was heard in October 2003. Unfortunately and rather surprisingly there has been
no judgment delivered as yet. It could well be the case that the judgment will be superseded
by domestic law. The working group on Defamation (of which I was honoured to be a
member) made a recommendation in the draft bill that in an action for defamation guidance
on damages may be given by counsel for the parties to the jury and must be given by the
judge hearing the case. We will have to wait and see whether that recommendation will be
included in the Bill as published by the Minister.
Steel and Morris v UK
Judgment in Steel and Morris v the UK better known as the McLibel case was given much
more speedily. That case was heard in the ECHR in September 2004 and judgment was
given on 15 February 2005. The ECHR judgment in this matter was the conclusion of an epic
legal battle which had lasted some nine years and six months, with a trial period of two years
and six months, and a twenty three day appeal.
Damages
The judgment case briefly refers to the issue of damages in defamation actions. The Court
believed that the size of the award of damages made against the two applicants (£36,000 and
£40,000) may have failed to strike the right balance. It stated that an award of damages for
defamation must bear a reasonable relationship of proportionality to the reputation suffered
and while the sums might seem relatively moderate compared to other defamation actions in
the UK they were very substantial when compared to the modest incomes and resources of
the two applicants. The Court held that in accordance with UK law McDonald's did not have
to establish any financial loss and therefore "the award of damages ... was disproportionate to
the legitimate aim served."
Legal Aid
Steel and Morris v UK (McLibel) is an interesting decision as it opens up the vista of legal aid
in defamation actions. The ECHR has shied away from imposing an obligation to provide
legal aid in these type of actions but has indicated that the particular circumstances of a case
might give rise to an obligation to provide legal aid. Considerations to be taken into account
include the importance of what is at stake for the applicant, the complexity of relevant law and
procedure and the applicant’s capacity to represent him or herself effectively. The Court
noted that Steel and Morris did not choose to commence defamation proceedings, "but acted
as Defendants to protect their right to freedom of expression, a right accorded considerable
importance under the Convention." The court also noted the massive length and complexity of
the case against Steel and Morris, and concluded "that the denial of legal aid to the
Applicants deprived them of the opportunity to present their case effectively before the Courts
and contributed to an unacceptable inequality of arms with McDonald's. There has, therefore,
been a violation of Article 6.1."
In relation to legal aid it would be extremely rare for an Irish plaintiff to find themselves short
of legal advisers, however, the government will have to give some consideration to the
judgment in order to ensure that they comply with the requirements of the European Court
particularly in the case of impecunious libel defendants
Burden of Proof
The Court in that case also revisited the issue of the burden of proof in defamation
proceedings. The Court had previously held in the McVicar case that it was not in principle
incompatible with Article 10 to force a defendant to prove the truth of defamatory statements .
The Court in McLibel held :“As a result of the law as it stood in England and Wales, the applicants had the
choice either to withdraw the leaflet and apologise to McDonald’s, or bear the burden
of proving, without legal aid, the truth of the allegations contained in it. Given the
enormity and complexity of that undertaking, the Court does not consider that the
correct balance was struck between the need to protect the applicants’ rights to
freedom of expression and the need to protect McDonald’s rights and
reputation….The lack of procedural fairness and equality therefore gave rise to a
breach of Article 10 in the present case”.
Thus the Irish Courts could in certain circumstances find an occasion where it is appropriate
to reverse the burden of proof and require the Plaintiff to demonstrate the falsity of the alleged
defamatory statement.
Independent Newspapers v The Minister for Justice, Ireland and the AG
The case law of the European Court of Human Rights will play a very significant role in this
case which Independent Newspapers is currently taking against the Minister for Justice,
Ireland and the Attorney General claiming inter alia a breach by the State of its obligations
under the provisions of Articles 6 (fair procedures), 10 (freedom of expression) and 13 (right
to an effective remedy) of the European Convention of Human Rights. The action seeks a
declaration that Order 22 Rule 1(3) of the Rules of the Superior Courts is incompatible with
those provisons of the convention. Order 22 Rule 1(3) provides that “In actions for libel or
slander….money may not be paid into court under this rule unless liability is admitted in the
Defence.”
PRIVACY
Introduction
The right to privacy is explicitly recognised in Article 8 of the Convention There have been
very few Irish decisions on the sometimes conflicting rights of free expression enjoyed by the
media and of privacy. This may be due, to some extent, to a reticence on the part of media
defendants to allow cases on the point to run to trial as this would give the Irish courts the
opportunity to clarify and perhaps extend the ambit of the constitutional and convention right
to privacy .
Von Hannover v Germany
With regard to my job, which includes advising media organs on a day to day basis on
material to be published, one recent judgment of the ECHR has had more significance than
any other and that is the decision in Von Hannover v Germany
The European Court of Human Rights got into the privacy sphere in June 2004, giving its
decision in Von Hannover –v- Germany. The applicant is perhaps better known as Princess
Caroline of Monaco. Three German magazines – Bunte, Neue Post and Freizeit Review –
published photographs which showed the Princess skiing, horse-riding, sitting in a café and
playing tennis with her husband, Prince Ernst-August of Hannover. Some of the pictures
included Princess Caroline’s children. The photographs were all taken in public places. The
photographs of the children were not at issue in the ECHR and the judgment related solely to
photographs of Princess Caroline herself.
The European Court of Human Rights said that publication of the photographs had violated
the Princess’s right to privacy. ‘Every person, however well known, must be able to enjoy a
legitimate hope for the protection of …their private life’, the Court said. ‘The general public
did not have a legitimate interest in knowing Caroline von Hannover’s whereabouts or how
she behaved generally in her private life’.
The Court held that although freedom of expression extended to the publication of
photographs, this was an area in which the protection of the rights and reputation of others
took on particular importance, as it did not concern the dissemination of “ideas”, but of images
containing very personal or even intimate “information” about an individual. Further, photos
“appearing in the tabloid press” were often “taken in a climate of continual harassment which
induces in ther person concerned a very strong sense of intrusion into their private life or even
of persecution” The decisive factor in balancing the protection of private life against freedom
of expression lies in the contribution that the published photographs and articles make to a
debate of general interest. The Court stated “A fundamental distinction needs to be made
between reporting facts – even controversial ones – capable of contributing to a debate in a
democratic society relating to politicians in the exercise of their functions, for example, and
reporting details of the private life of an individual who, moreover, as in this case, does not
exercise official functions. While in the former case the press exercises its vital role of
“watchdog” in a democracy by contributing to “impart[ing] information and ideas on matters of
public interest…it does not do so in the latter case.” “The publication of the photos and
articles in question, of which the sole purpose was to satisfy the curiosity of a particular
readership regarding the details of the applicant’s private life, cannot be deemed to contribute
to any debate of general interest to society despite the applicant being known to the public.”
The Court overturned a German ruling, which said that, as a public figure, Princess Caroline
had to accept being photographed in public. This was the so-called ‘doorstep’ defence.
Broadly, when the family physically crossed the threshold of their home, they entered a public
world. Germany came under some pressure to appeal the judgment to a Grand Chamber of
the Court but it has declined to do so.
The codes of practice for journalists here and in the United Kingdom state that ‘It is
unacceptable to photograph individuals in private places without their consent. Private places
are public or private property where there is a reasonable expectation of privacy.’ It is hard to
argue with this or with the suggestion that public figures have rights to privacy.
It is well nigh impossible, save in particularly obvious cases, for the media to draw distinctions
between public behaviour in a public place and private behaviour in a public place. Yet that is
what the Court insists they must do. Let’s take the following example. Princess Caroline and
her husband Prince Ernst are photographed arguing while having coffee on Monaco
boulevard. Is this a private matter or, perhaps, one of enormous public interest, spelling the
potential end of the Princess’s marriage? Faced by the possibility of expensive litigation, it
would hardly be surprising if self censorship came into play.
The practical effects of such decisions are significant. The decision seems to be drawn from
the civil law in France which similarly draws a distinction between public and private
behaviour, rather than between behaviour in a public or private place. The first and most
immediate impact of the Von Hannover decision can be seen in the pages of the so called
celebrity magazines Heat, New, Closer, Now etc (or so I am reliably informed!). The
approaches being taken are inconsistent (probably because of the difficulty of interpreting the
decision). In the past week an identical photograph appeared in two publications. It was a
photograph of Victoria Beckham, her former nanny and one of her children. In one magazine
the photograph was unaltered and in the other the picture of the child was pixelated. Which
approach was correct? Victoria Beckham and her husband have posed with their children in
a variety of celebrity magazines – does that mean publications can then feature their
photographs with impunity? Or is the more correct approach to assume that children’s identity
should be concealed.
The Press Complaints Commission in the UK recently distinguished the decision. On 5
November 2004 the PCC rejected a complaint by the publisher of the Spectator, Kimberly
Fortier over a photograph taken of her and her baby in a public place and published in the
Sunday Mirror. With regard to privacy, the Commission stated that it would not generally find
that the “publication of photographs of people in public places breach the Code,” particularly
when there has been no harassment. Having said that, “exceptions might be made if there
are particular security concerns, for instance, or in rare circumstances when a photograph
reveals something about an individual’s health that is not in the public interest.”
The PCC did not comment on whether or not Fortier was a public figure, but did state that
“there was a general public debate about the life of a senior politician with whom the
complainant was allegedly involved” and that Fortier’s own “identity had been established in
the public domain without complaint”.
In this context the PCC could not find that “the publication of a photograph – which
contributed to the public debate and which was taken in accordance with the Code at a time
when the story was developing – was intrusive.”
On first reading, the PCC’s decision may seem to be at odds with the ECHR’s judgment.
However, there are arguably distinguishing factors between the two cases. Princess Caroline
had been subjected to a decade of being followed and photographed by the paparazzi, and
the photographs were of a purely voyeuristic nature, making no contribution to any debate of
public interest. By contrast, Fortier’s “identity had been established in the public domain
without complaint”, her complaint only related to one photo, and all at a time when the story of
her alleged affair with the Home Secretary was of legitimate public interest.
That said, it remains to be seen how the English courts will attempt to assimilate and interpret
Von Hannover into English law. If Ms Fortier were to challenge the PCC’s ruling in the courts,
it is hard to predict what the outcome would be.
For media lawyers the Von Hannover decision means that in relation to photographs or film
there will have to be more of an analysis of photographs, their subjects and whether there is
any public interest element to the photographs.
RIGHT TO LIFE
Article 2 of the Convention guarantees the most basic human right, the right to life. Perhaps
surprisingly, this Article has already had an impact on the media’s right to free expression in
the U.K. Article 2 states:
‘Everyone’s right to life shall be protected by law. No one shall be deprived of
his life intentionally save in the execution of a sentence of a court following
his conviction of a crime for which this penalty is provided by law’.
The murder of James Bulger by John Venables and Robert Thompson on February 12 1993
was a horrific crime that caused much public outrage and attracted international media
attention. At the end of the murder trial the judge determined, notwithstanding the youth of
the accused, that they could be named and their images shown by the media. During the
period of their detention, however, injunctions were put in place which restricted the
information which the media were entitled to publish. Those injunctions came to an end when
Venables and Thompson reached 18. They then applied to the President of the Queen’s
Bench Division in the U.K. for injunctions preventing their identification for the rest of their
lives. They were supported in their applications by the Home Office. Venables and Thompson
had received death threats and the authorities proposed to give them new identifies upon
their release. Notwithstanding resistance by lawyers for the print media, the injunctions were
granted and made final after a full trial.
The President of the Queen’s Bench Division, Dame Elizabeth Butler-Sloss, determined that
Venables and Thompson were ‘uniquely notorious’ and would be for the rest of their lives at
serious risk of attacks from members of the public, as well as from relatives and friends of the
murdered child. As she put it in Venables and Thompson –v- Newsgroup Newspapers and
Others (2001) EWHC QB 32:
‘If any section of the media decided to give information leading to the
identification of either young man, such publication would put his life at risk.
In the exceptional circumstances of this case and applying English domestic
law and the right to life enshrined in Article 2 of the European Convention, I
have come to the conclusion that I am compelled to take steps in the almost
unique circumstances of this case to protect their lives and wellbeing’.
While recognising the enormous importance of freedom of expression, she nonetheless
granted an open-ended injunction for the rest of the lives of Venables and Thompson.
Indeed, one Manchester newspaper has already been convicted and fined for contempt of
court for breaching her order by publishing material which could have identified their
whereabouts, (A-G-v-Greater Manchester Newspapers Limited (2001) EWHC QB 451).
JOURNALISTS’ SOURCES
A question of some importance to freedom of expression is the confidentiality of journalistic
sources. The European Court has considered such confidentiality to be a necessary precondition for press freedom protected by Article 10.
In Goodwin v U.K. (1996) 22 EHRR 123, the court considered whether an order requiring a
journalist to disclose his source contravened Article 10. In finding that it did, a majority of the
court stated:
‘Protection of journalistic sources is one of the basic conditions for press
freedom, as is reflected in the laws and professional codes of conduct in a
number of contracting states and is affirmed in several international
instruments on journalistic freedom. Without such protection, sources may
be deterred from assisting the press and informing the public on matters of
public interest. As a result, the vital public watchdog role of the press may be
undermined and the ability of the press to provide accurate and reliable
information, may be adversely affected. Having regard to the importance of
protection of journalistic sources for press freedom in a democratic society
and the potentially chilling effect an order of source disclosure has on the
exercise of that freedom, such a measure cannot be compatible with Article
10 of the Convention unless it is justified by an overriding requirement in the
public interest’.
In Mr. Goodwin’s case, there was no such overriding requirement in the public interest.
This decision would appear to fly in the face of Irish law as enunciated in Re Kevin O’Kelly
(1972) 108 ILTR 97 which held that journalists had no greater or lesser right to refuse to
disclose confidential information than any other citizen. However, in an unreported case in
the Dublin Circuit Court in early 1996 (Nicola Gallagher v Garda Representative Association),
both counsel for the Attorney General and the presiding Judge, Judge Carroll, accepted that a
journalist could only be asked to reveal a confidential source when it was both necessary and
relevant for the administration of justice. This is a considerable change from the position of
the authorities in 1972 and appears to reflect a change in the law consequent upon Article 10
of the ECHR and European case law on it.