CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 15 juin 2017

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .s29100277 { font-family:Arial; font-weight:bold } .sA36B60A1 { font-family:Arial; font-style:italic } .s598389FB { margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:14pt } .sF5E1C6CF { font-family:Arial; font-weight:bold; text-decoration:underline; color:#ff0000 } .sE208486F { font-family:Arial; color:#ff0000 } .s598389F8 { margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:11pt } .s4ACA9207 { page-break-before:always; clear:both; mso-break-type:section-break } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } .sCB9E0544 { margin-top:0pt; margin-bottom:0pt; text-align:left } .sB9D5CABB { width:28.35pt; display:inline-block } .sD3B63DAD { margin-top:36pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s79DE5897 { margin-top:18pt; margin-left:17.85pt; margin-bottom:12pt; text-indent:-17.85pt; page-break-inside:avoid; page-break-after:avoid } .sA8776625 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; page-break-inside:avoid; page-break-after:avoid } .sF7A86111 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; font-size:10pt } .sD6845F38 { font-family:Arial; color:#0072bc } .s72C8F48C { margin-top:12pt; margin-left:36.6pt; margin-bottom:6pt; text-indent:-15.05pt; page-break-inside:avoid; page-break-after:avoid } .sAADB120E { margin-top:6pt; margin-left:28.35pt; margin-bottom:6pt; text-indent:7.1pt; font-size:10pt } .s83BE5C30 { font-family:Arial; font-size:8pt; vertical-align:super } .sA20670C4 { margin-top:12pt; margin-left:48.75pt; margin-bottom:6pt; text-indent:-17pt; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .s76CC6FD2 { margin-top:0pt; margin-left:17pt; margin-bottom:0pt; text-indent:-17pt; page-break-inside:avoid; page-break-after:avoid } .sD6E1DABD { margin-top:0pt; margin-left:17.3pt; margin-bottom:0pt; page-break-inside:avoid; page-break-after:avoid } .s4B243ECC { margin-top:12pt; margin-bottom:0pt; text-indent:14.2pt; page-break-inside:avoid; page-break-after:avoid } .sA5C4F8A9 { margin-top:36pt; margin-bottom:0pt; text-align:left; page-break-inside:avoid; page-break-after:avoid } .sBF964C40 { width:8.54pt; display:inline-block } .s9E304268 { width:190.42pt; display:inline-block } .sA2E62387 { width:204.97pt; display:inline-block }       FIFTH SECTION             CASE OF INDEPENDENT NEWSPAPERS (IRELAND) LIMITED v.   IRELAND   (Application no. 28199/15)           JUDGMENT         STRASBOURG   15 June 2017   FINAL   15/09/2017   This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Independent Newspapers (Ireland) Limited v. Ireland, The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:   Angelika Nußberger, President,   Erik Møse,   André Potocki,   Yonko Grozev,   Síofra O’Leary,   Carlo Ranzoni,   Lәtif Hüseynov, judges, and Milan Blaško, Deputy Section Registrar, Having deliberated in private on 23 May 2017, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application (no. 28199/15) against Ireland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by an Irish company, Independent Newspapers (Ireland) Limited (“the applicant company”), on 29 May 2015. 2.     The applicant company was represented by Meagher Solicitors, a law firm in Dublin. The Irish Government (“the Government”) were represented by their Agent, Mr P. White of the Department of Foreign Affairs. 3.     The applicant company alleged a violation of its right to freedom of expression due to a disproportionately high award of damages against it in a defamation case that reflected the inadequacy and ineffectiveness of domestic safeguards designed to prevent such awards. 4.     On 11 February 2016 the application was communicated to the Government. 5.     Third-party comments were received jointly from NewsBrands Ireland and Local Ireland, bodies representing national and regional newspapers respectively, which had been given leave by the President to intervene in the written procedure (Article 36 § 2 of the Convention and Rule 44 § 2). The parties replied to those comments (Rule 44 § 5). THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 6.     The applicant company is the publisher of an Irish daily newspaper, the Herald . At the time of the events giving rise to this case, the title of the newspaper was the Evening Herald . 7.     Between 30 November and 17 December 2004, the Evening Herald , published a series of articles about the awarding of Government contracts to a public relations consultant, Ms L. The articles pointed out that she was a supporter of, and well acquainted with, a prominent political figure, Mr   C., both of them coming from the same city. She had been hired as a consultant by the Office of Public Works beginning in November 2001, when Mr   C. was the minister with responsibility for this department of Government. When he was appointed in mid-2002 to the more senior political post of Minister for the Environment, Heritage and Local Government, Ms   L. was then hired as a consultant by that Government Department, and was still working for it at the time the articles appeared. 8.     The Evening Herald called into question the manner in which the tendering procedure had been conducted, the qualifications of Ms L. for the work involved, the high level of remuneration she received, as well as the amount of work that was in fact done by Ms L. It referred to eight trips abroad on which Ms L. had been part of the ministerial entourage, in particular a trip to New York to attend a United Nations conference. The newspaper stated several times that the relevant United Nations department could find no trace of Mr C. having taken part in the conference, even though his Department maintained that he had attended it. A later article stated that the United Nations did in fact have a record of the Minister’s attendance. 9.     The story was developed in eleven articles published over a period of two weeks in nine editions of the newspaper. It became headline news and formed the subject-matter of an editorial decrying apparent favouritism in the award of Government contracts and calling for an inquiry. 10.     The articles referred to rumours of an intimate relationship between Mr   C., who was at that time separated from his wife, and Ms L., who was married with two teenage children. There were also references to Ms   L.’s attractive appearance and her lifestyle. Various photographs were included, including one that showed the two standing side by side in evening wear as if a couple. This image was obtained by altering the original photo, which contained four people. One of the front page articles was accompanied by a large photomontage containing the same image of Ms L. in evening wear, but modified to suggest that the skirt had a slit that reached almost to her hip. The montage showed her standing very close to the Minister, whose image had been taken from another photo, with the New York skyline behind them. The headline read “The Minister, [Ms L.] and the Mystery Meeting”. 11.     The Supreme Court found that the articles complained of amounted to a serious and sustained attack on Ms. L.’s business and personal integrity and were part of a sustained campaign building up over a period of just two weeks. She had been accused of engaging in an adulterous relationship for the sake of obtaining lucrative contracts and at the end of that period, she had gone from a person who would not have been known to the general public at all to someone who was notorious (see further paragraphs 23 ‑ 33 below). 12.     The issue of the contracts awarded to Ms L. was taken up by other parts of the Irish media, and led to questions in the Irish parliament ( Dáil   Éireann ). A report issued in 2005 at the request of the then Prime Minister ( Taoiseach ) found that while there had been certain shortcomings in the way that the contracts had been awarded and in the monitoring and recording of the work done, there had not been any specific infringement of the relevant norms, guidelines or practices. A.     Defamation proceedings in the High Court 13.     Ms   L. sued the applicant company for defamation. The case was heard before a jury in the High Court over seven days in June 2009. The two issues put to the jury were whether the articles, as a whole, including the accompanying photographs, meant that Ms L. had an extra-marital affair with Mr C., and whether the last article in the series meant that Ms   L. had travelled to New York at Government expense in the company of Mr   C. for a United Nations conference, but that she had not in fact attended it. 14.     In accordance with Irish law (see paragraphs 38-42 below for further details), the jury was directed that if it found in favour of Ms L. on either issue, or both, it should assess damages. 15.     In his charge to the jury, the trial judge explained that in an action for defamation, damages serve three functions: to afford consolation for the distress caused by the defamatory statement; to repair the harm to reputation, including business reputation; and to vindicate the person’s reputation. He stated that the jurors could take account of Ms L.’s standing in society and in the business community, the nature of the libel (the insinuations that she had betrayed husband and family and that she had misused public funds), the mode and extent of publication (carried repeatedly in a widely-read daily newspaper), the absence of an apology, and the fact that the applicant company pleaded the defences of justification and fair comment throughout the trial. If the jury were to make an award, it must be appropriate and fair to both parties. The rules governing the trial judge’s directions to the jury are known as the Barrett rules, laid down by the Supreme Court in 1986 (see paragraph 39 below). 16.     The trial judge did not give any specific guideline to the jury regarding the appropriate level of compensation, stressed the limited nature of the guidelines he could provide and indicated, in broad terms, that, when assessing damages the jury must bear in mind reality, the current times, the cost of living and the value of money. He added a cautionary note: “On one famous occasion I told a jury that the plaintiff, if he won, hadn’t won the [national lottery] and they immediately awarded a million euro. Now, that wasn’t what I meant when I was saying that to them.” He explained that the law did not permit him to suggest a figure or a range of figures to the jury: “The amount of damages, ladies and gentlemen, is a matter for you, should you choose to award them. I can’t suggest a figure to you, I am not permitted to suggest a figure to you. I can’t give you a range of figures, I am not permitted to give you a range of figures. I can give you what help I can, and I will, in coming to an appropriate figure for damages. But, ultimately, the figure is yours.” 17.     He warned the jurors not to be “overcome by feelings of generosity and give [Ms L.] a ridiculously large amount of money”. Any award must be of an appropriate amount. He continued his charge to the jury as follows: “... [T]hat appropriate figure must also take into consideration the Defendant. You must also be fair to the Defendant too ...[Y]ou must consider the Defendant as well because your decision must be a fair decision and must be fair to both parties. ... You must come to a figure that is an appropriate figure and that is, I fully realise, ... not an easy thing to do. I would like to be able to tell you what other figures have been given in the recent past in similar cases, but I can’t do that and I mustn’t do that. If any of you think you remember newspaper headlines over the past twelve months or so of damages awarded in cases, every case is different. Put those out of your mind completely ... It is this case and what is appropriate in this case that is important and you have to reach that decision yourself and without as much help as I would like to be able to give you, but I am not permitted to give you.” 18.     After the jury had retired, the plaintiff’s counsel requested the trial judge to retract the reference to the lottery, as he feared it would be understood by the jury as a warning to keep any award significantly lower than one million euros. He contended that no figure should have been suggested. Counsel for the applicant company disagreed, taking the view that the jury would have clearly understood the trial judge’s remark was not to make any suggestion about the appropriate level of damages in the instant case. The trial judge declined to revisit this aspect of his charge to the jury as it could cause confusion in jurors’ minds, who might think that in withdrawing the reference the trial judge might have been suggesting less or more than that figure. He observed to counsel: “I do find myself in difficulties because of the Supreme Court’s ruling [in the De   Rossa case] in that I can’t even indicate to a jury upper and lower in the most general terms, which I would like to be able to do because I think it would save a lot of trouble and I can’t do it because of the decision of the Supreme Court.” He concluded the exchange with counsel on this matter as follows: “I did think that I had traversed the question of damages and, each successive case I do, I get more long-winded about it because I started with very short charges and I used to be very surprised, one way or another, at the amounts juries brought in.” 19.     On the first issue the jury found that the newspaper had alleged an extra-marital affair between the plaintiff and Mr C. On the second issue, it found that the meaning of the article was not defamatory. 20.     The jury assessed damages at EUR 1,872,000 and the trial judge gave judgment in this amount. He granted a stay on payment pending appeal, with the proviso that the applicant company make an interim payment of EUR 750,000 to Ms L., with an additional EUR 100,000 in legal costs. These payments were made, the Supreme Court having refused on 27   July 2009 to set aside the High Court’s order on interim payment. 21.     The applicant company accepted the jury’s decision that it had defamed Ms L. The Evening Herald published an apology to her in its edition of 19 January 2010. It appealed the amount of damages, arguing that no reasonable jury could have made such an award, that it was disproportionate to the damage caused and amounted to an unlawful interference with the applicant company’s rights under the Constitution and the Convention. In its subsequent submissions to this Court on just satisfaction, it considered that a much lower sum – EUR 175,000 – would have been sufficient compensation in the circumstances. 22.     In the event that the Supreme Court set aside the award of damages on appeal, Ms L. sought to have the matter remitted to the High Court for a fresh assessment by a new jury. In its notice of appeal, the applicant company also sought an order directing a retrial on the issue of damages. It appears from the case file that, in its subsequent submissions before the Supreme Court, in the event that the latter set aside the High Court award, it argued that the Supreme Court should itself decide the amount of compensation. B.     Review by the Supreme Court 23.     The Supreme Court gave its ruling on 19 December 2014. All three judges found that the award to Ms L. was excessive and must be set aside. The majority decided to substitute its own assessment of damages (EUR   1.25 million), while the other judge took the view that the case should be re-tried before a different jury. As this would not happen, he indicated that he would have assessed damages at EUR 1 million. 24.     The judgment of the majority was given by Dunne   J., with whom Murray   J. concurred. She noted that the case did not come within the current law on defamation (the Defamation Act 2009, see paragraphs 51-53 below), but had to be decided in accordance with the previous law. Under that regime, the trial judge was limited in the directions that could be given to a jury regarding the appropriate level of damages. It had not been suggested that the trial judge had committed any error in his charge to the jury on the question of damages. Rather, the complaint was that the award was so disproportionately high that it should be set aside. She referred to the relevant Supreme Court case-law, which held that it was the duty of the trial judge to direct the jury that damages must be confined to an amount that will fairly and reasonably compensate the plaintiff for injured feelings and loss of standing. Furthermore, as a fundamental principle of the law of compensatory damages, the award must be reasonable and fair and bear a due correspondence with the injury suffered; a disproportionately high award would be set aside. She rejected the applicant’s argument that larger libel awards should be subjected to more searching scrutiny on appeal than had been customary in the past. Nor did she accept that the relevant legal test should be whether a reasonable jury would have thought such an award necessary to compensate the plaintiff and to re-establish her reputation. She stated: “If such were the test to be applied, it would remove from the jury award the “very unusual and emphatic sanctity” referred to [in previous case-law]. Consequently, while awards made by jury must, on appeal, be subject to scrutiny by the appellate court, that court is only entitled to set aside an award if it is satisfied that in all the circumstances, the award is so disproportionate to the injury suffered and wrong done that no reasonable jury would have made such an award.” 25.     She further recalled the need for the law to reflect a due balancing of the constitutional right to freedom of expression against the constitutional protection of every citizen’s good name, which, as stated in case-law, brought the concept of proportionality into constitutional jurisprudence. Referring to this Court’s judgment in Independent News and Media and Independent Newspapers Ireland Limited v. Ireland (no. 55120/00, ECHR   2005 ‑ V (extracts)), she observed that it did not alter or reconfigure Irish law in respect of awards of damages in defamation. She stated: “[T]he position in Irish law is that an appellate court will be slow to interfere with the verdict of a jury on the assessment of damages but nevertheless awards by juries are subject to scrutiny and if an award is so disproportionate in the circumstances of the case having regard to the respective rights of freedom of expression on the one hand and on the other hand the requirement under the Constitution to protect the good name of every citizen that no reasonable jury would have made such an award then the award will be set aside on appeal.” 26.     She reviewed the terms used by the trial judge in his charge to the jury. He had told them they could consider the plaintiff’s position in the business community. They could also consider the nature of the libel, which contained the suggestion that she was immoral, had been unfaithful to her husband and had betrayed her family. The mode and extent of publication were relevant, as were the absence of an apology and the company’s decision to stand over the articles to the end. 27.     Dunne   J. then considered the applicant company’s argument that the amount of damages awarded against it should be compared to awards that had been set aside as excessive in previous defamation cases. She agreed that the comparison might provide some assistance in assessing the gravity of the libel. But she also underlined the need for caution, given the wide variety of factual circumstances of such cases and also the passage of time since previous appellate decisions. As for comparison with personal injury awards, she recalled the different function of damages in the two types of case. In defamation, the function of damages was both to compensate the injury to reputation and to vindicate the person’s good name, a consideration which was not relevant in personal injuries cases. 28.     The judge then set out the relevant factors for considering the proportionality of the damages awarded to Ms L. The first was the gravity of the libel. The more closely the libel touched the plaintiff’s personal integrity, professional reputation, honour, courage, loyalty and the core attributes of their personality – as was the case here – the more serious it was likely to be. She described the libel as a serious and sustained attack on the business and personal integrity of Ms L. It could be fairly compared with a previous case involving the defamatory allegation against a prominent businessman of bribing a Government minister in order to obtain a licence to operate a radio station (the O’Brien case, summarised in Independent News and Media judgment at §§ 54 - 63). It could not, however, be regarded as being in the category of the gravest and most serious libels to come before the courts, as was the libel in the De Rossa case (the case that led to the Independent News and Media case, it having been alleged that Mr   De Rossa personally supported anti-Semitism and violent communist oppression). But the libel of Ms L. was nonetheless a very serious one. The allegation of adultery must have been a course of real hurt and distress to her. 29.     The next factor was the extent of publication. Ms L. had cited eleven articles concerning her. There had been some more articles focussing on the role of the Minister. It was a sustained campaign over a number of days. The newspaper had a daily circulation throughout the State of 90,000   copies; its readership would be higher still. Ms L. had gone from being unknown to the public to being notorious. The publication had therefore been particularly widespread and extensive. 30.     The third factor was the conduct of the defendant. It had run a defence of justification that the jury had rejected. It had not offered any apology to Ms L. before the verdict, which was a point the jury could have taken into account. The articles had been accompanied by photographs that had been cropped and manipulated to lend force to the implication that Ms   L. got her contracts by virtue of the fact that she was having an affair with the Minister. That too could have been taken into consideration by the jury. 31.     The fourth factor was the impact of the defamation on Ms   L. The articles had attacked her moral character and her professional reputation. They had implied that she was unfaithful to her husband and had played a part in the break-up of Mr C.’s marriage. They had conveyed the impression that she was prepared to engage in an adulterous relationship in order to advance her professional standing and career. Her ability to do the work she was hired for had been called into question. A new business initiative she was involved in ended when the partner had withdrawn following the publication of the articles, and her consultancy work for the Government had come to an end. Ms L. had given evidence of her own personal hurt and distress at the articles, and described the impact on her husband and sons, one of whom had had to change school in his final year while he was preparing to sit important public examinations. Ms L. had received personal abuse in her hometown. Overall, the articles had had a profound effect on her in every aspect of her family and professional life, which was a consideration that was also relevant to the jury’s award. 32.     She then assessed the sum awarded in damages: “The award of damages in this case in the sum of €1,872,000 is a very large award by any standard. ... Overall, I am satisfied that the defamation in this case was a very serious defamation. Undoubtedly, if one was to place the defamation in this case on a scale of seriousness, it would certainly be towards the higher end of the scale. A   somewhat unusual feature of this case was the sustained campaign in the Evening Herald in respect of Ms. L. The consequences of it affected her in her day to day life, personally and in her business life. Her newly launched business was destroyed before it could become established. I have no doubt that from her point of view it was a very serious matter. Nevertheless, I do not think it could be classed as one of the most serious libels to come before the Courts ... [T]he award made to Ms. L in this case was one of the highest ever awards made in a case of this kind in this country. Even accepting that this case is one that comes towards the higher end of the scale, I am satisfied that the award made by the jury in this case was excessive and must be set aside.” 33.     She continued: “I am conscious of the firm instructions of Ms. L to her legal representatives that in the event that this Court came to the conclusion that the amount of the award was excessive that the Court should in those circumstances remit the matter to the High Court for assessment by a jury again. Whilst I understand those to be her instructions I am satisfied that in the context of this case it would be desirable for all parties to bring an end to the litigation between the parties and in those circumstances it seems to me that the approach to be taken by the Court should be to set aside the verdict of the jury on damages and to substitute a sum in the figure of €1,250,000 for damages.” 34.     The other, partly-dissenting judgment was given by McKechnie   J. He stated that the issue was whether the award was reasonable and fair and bore a due correspondence with the injury suffered, which was essentially a matter of proportionality. He rejected the suggestion that the jury should be informed of awards made in personal injury actions. The nature and purpose of the two types of damages were inherently different. As for comparison with previous defamation awards, he opposed this for practical reasons. Even with the greatest of care, he did not see how cross referencing to a previous award could aid in determining the compensation to be paid to a particular plaintiff in respect of a particular publication for a particular injury. At most, he could accept that some benefit could be obtained if the comparison was applied within the same or similar class of defamatory remarks. 35.     He observed that since the jury represented the community, and defamation was rooted in community values, jury awards in defamation cases enjoyed an eminence and distinction significantly higher than other types of award, including jury awards in non-defamation cases. This point was supported by numerous dicta of the Supreme Court. He said: “... Appeal judges, when conducting such a review, are not the jury and cannot assume the jury’s role. Intervention will be justified only where the award obviously falls outside permitted parameters which, in determining, the court must have due regard, inter alia , to the uniqueness of the jury’s representative function in this particular judicial process. ... Therefore, an award will not be disturbed easily or second guessed purely to fine tune it.” 36.     He analysed the libel in detail and also concluded that the award was not proportionate, failing to reflect the necessary objective relationship between wrongdoing and harm. Although he considered that the issue of damages should be submitted for consideration by a fresh jury, in the light of the majority’s decision to set aside the jury verdict and substitute its own award, he offered his own view on the appropriate level of damages, placing it at one million euros. 37.     The applicant company duly paid an additional EUR   500,000 in compensation to Ms L. On 26 February 2015, the Supreme Court ordered that the applicant company should bear the legal costs incurred by Ms   L. in the appellate proceedings. According to the applicant company, this came to EUR   240,448.16. II.     RELEVANT DOMESTIC LAW AND PRACTICE A.     Irish law and case-law on defamation 38.     As indicated in § 43 of the Court’s judgment in Independent News and Media , pursuant to Irish law applicable at the relevant time, the jury assessed damages following its finding of defamation. It did so on the basis of directions provided by the trial judge. The Supreme Court could review and quash the award of a jury of the High Court. Although it had the power, under Article 34.4.3 of the Constitution as well as by statute, to substitute its own award for a jury’s award of damages on appeal in a civil case (see Holohan v.   Donohue [1986] ILRM 205), its use in defamation cases was very rare (see in this regard the judgment of McKechnie J., paragraphs   96 ‑ 98). Instead, the usual course was to refer the matter back to the High Court for a further trial on damages before a different jury. In the new trial, the second jury would not be informed of the Supreme Court decision to quash the earlier award, of the amount of that original award, or of the appellate court’s reasoning when quashing the award and ordering a retrial. 39.     In Barrett v. Independent Newspapers Limited , cited above, in which the Supreme Court set aside an award of IR£ 65,000 as excessive, Henchy   J. summarised the principles to be applied as follows: “... it is the duty of the judge to direct the jury that the damages must be confined to such sum of money as will fairly and reasonably compensate the plaintiff for his injured feelings and for any diminution in his standing among right-thinking people as a result of the words complained of. The jury have to be told that they must make their assessment entirely on the facts found by them, and they must be given such directions on the law as will enable them to reach a proper assessment on the basis of those facts. Among the relevant considerations proper to be taken into account are the nature of the libel, the standing of the Plaintiff, the extent of the publication, the conduct of the Defendant at all stages of the case and any other matter which bears on the extent of damages. ... a fundamental principle of the law of compensatory damages is that the award must always be reasonable and fair and bear a due correspondence with the injury suffered.” 40.     In Lennon v. HSE [2015] IECA 92, the Court of Appeal held that the right to trial by jury in defamation proceedings is a statutory right. 41.     In Hill v. Cork Examiner Publications Ltd [2001] IESC 95, in which the Supreme Court allowed an award of IR£ 60,000, Murphy   J. stated on the subject of directions to the jury; “Judges in charging juries as to their responsibilities in determining damages ... can say or do little more than recall that damages are designed to compensate for the consequences of a wrong doing and not to punish the wrong doer. It will always be said - perhaps unhelpfully - that the sum awarded should be reasonable to the plaintiff and also reasonable to the defendant. In relation to the extent to which a trial judge could and should give guidance as to an appropriate measure of damages was considered by this Court in De Rossa ... Whilst other jurisdictions have accepted the concept of such guidelines that concept has been rejected in this jurisdiction. Apart from any other consideration there would appear to be insuperable difficulties for any judge to assemble the appropriate body of information on which to base such guidelines.” 42.     In De Rossa v. Independent Newspapers (the case which, as indicated previously, led to the Independent News and Media case), Hamilton   C.J., allowing an award of IR£ 300,000, held that the Barrett rules introduced a requirement of proportionality in so far as jury damages are concerned. He also emphasised that “neither the common law, nor the Constitution, nor the Convention give to any person the right to defame”. Dissenting, Denham J. held that providing more information to the jury would not fetter its 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 and the administration of justice. Guidelines would assist in achieving consistent and comparable decisions which would enhance public confidence in the administration of justice ... The place of the jury, which is at the core of a trial on libel, is not diminished by informing it of issues relevant to the proportionality of damages. It does not detract from its function but rather enhances it.” 43.     In Dawson v. Irish Brokers Association , Supreme Court, unreported, 27   February 1997, setting aside a jury award of IR£ 515,000 which he considered so excessive as to call for the intervention of the Supreme Court and ordering a retrial, O’Flaherty J. stated: “... the defendants in defamation cases should never be regarded as custodians of bottomless wells which are incapable of ever running dry. ... Further, unjustifiably large awards, as well as the costs attendant on long trials, deals a blow to the freedom of expression entitlement that is enshrined in the Constitution.” 44.     In answer to a question posed by the Court about appeals in defamation cases against the quantum of damages, the parties informed the Court of developments in a number of defamation cases concluded or still pending before the Irish courts. 45.     In 2000, in the O’Brien case, the Supreme Court set aside the original jury award of IR£ 250,000. In the re-trial in 2006 the second jury awarded the plaintiff EUR 750,000, which was almost three times the award which the Supreme Court had set aside as disproportionately high. 46.     The case of McDonagh v. Sunday Newspapers Ltd. [2015] IECA 225 involved allegations published in a widely-read newspaper in 1999 that the plaintiff played a major role in the sale of illegal drugs and also was involved in loan sharking (lending money at excessive rates of interest). In a decision of 28 February 2008, a jury in the High Court found the article to be defamatory in both respects and assessed damages at EUR 900,000. On 19   October 2015 the Court of Appeal ruled that the jury’s verdict in relation to drug dealing was perverse and could not be allowed to stand since the evidence in the case strongly substantiated the allegation. On the loan sharking allegation, it set the verdict aside for the reason that the jury had not been properly directed on the relevant evidence. It ordered a re-trial on this issue alone. In 2016, the Supreme Court granted Mr. McDonagh leave to appeal that decision. 47.     The case of Kinsella v. Kenmare Resources Ltd., which was also tried under the old regime, arose out of an incident during a business trip to Africa in which the plaintiff had sleep ‑ walked naked through the accommodation he was staying in, opening the doors of other bedrooms including that of a female colleague. The defendant company later made a statement to the press in 2007 insinuating that the plaintiff had made inappropriate sexual advances to the woman. In November 2010 the High Court jury found that the plaintiff had been defamed and assessed damages at EUR   9 million for compensatory damages as well as EUR 1 million for aggravated damages. The case is currently under appeal before the Court of Appeal. B.     Reform of Irish defamation law 1.     Law Reform Commission (“LRC”) 48.     The LRC consultation paper of March 1991 provisionally recommended, inter alia, that parties to defamation actions in the High Court should continue to have the right to have the issues of fact determined by a jury with the damages in such actions being assessed by the judge following the jury’s determination whether nominal, compensatory or punitive damages should be awarded. The LRC also indicated that although damages awards in Ireland were, at that time, lower than in the neighbouring common law jurisdiction, it was felt that some awards by Irish juries were themselves unreasonably high and that, as a result, when settling a case, Irish plaintiffs would forego a trial and settle only in return for a substantial sum. 2.     Report of the Legal Advisory Group on Defamation (“LAG”) 49.     The LAG was established by the Minister for Justice, Equality and Law Reform in 2002 with a view to examining reforms of the libel laws to bring them into line with other States. As regards the respective roles of the judge and jury, the recommendations in its report of March 2003 were summarised as follows: “The function of assessing damages in defamation proceedings heard before a jury should remain with the jury; Parties to proceedings should be able to make submissions to the court and address the jury concerning damages; Judges would be required to give directions to a jury on the matter of damages; In making an award of damages, regard would have to be had to a non-exhaustive list of matters including, for example, the nature and gravity of any allegation in the defamatory matter, the extent to which the defamatory matter was circulated and the fact that the defendant made or offered an adequate, sufficient and timely apology, correction or retraction, as the case might be. ... There should be an avoidance of doubt provision to the effect that, in a defamation appeal from the High Court, the Supreme Court could substitute its own assessment of damages for the damages awarded in the High Court.” 50.     The LAG also recommended that: “a statutory provision should be introduced which would require the judge in High Court proceedings to give directions to the jury on this matter. Such a provision should be general in nature but would, in an appropriate case, allow a judge to refer to the purchasing power of the likely award, the income which it might produce, the scale of awards in previous defamation cases and the appropriate level of damages in all the circumstances of the case. These provisions should be in addition to the basic provision which would specify a broad range of factors to which regard should be had when making an award of [non-pecuniary] damages. It was felt that provisions of this kind would be consistent with recent developments within the United Kingdom and other common law jurisdictions... and would accord well with the freedom of expression entitlement enshrined in both the Constitution and the European Convention on Human Rights.” C.     The Defamation Act 2009 51.     The aim of the Defamation Act 2009 was to update Irish defamation law, taking account of the relevant domestic and Convention jurisprudence. While it was not applicable in the present case, the following provisions are nonetheless of relevance: “13.—(1)     Upon the hearing of an appeal from a decision of the High Court in a defamation action, the Supreme Court may, in addition to any other order that it deems appropriate to make, substitute for any amount of damages awarded to the plaintiff by the High Court such amount as it considers appropriate.” 52.     Section 26 of the Act provides for a defence of fair and reasonable publication on a matter of public interest. 53.     In relation to damages, Section 31 of the Act provides as relevant: “(1)     The parties in a defamation action may make submissions to the court in relation to the matter of damages. (2)     In a defamation action brought in the High Court, the judge shall give directions to the jury in relation to the matter of damages. (3)     In making an award of general damages in a defamation action, regard shall be had to all of the circumstances of the case. (4)     Without prejudice to the generality of subsection (3) , the court in a defamation action shall, in making an award of general damages, have regard to— ( a )     the nature and gravity of any allegation in the defamatory statement concerned, ( b     the means of publication of the defamatory statement including the enduring nature of those means, ( c )     the extent to which the defamatory statement was circulated, ( d )     the offering or making of any apology, correction or retraction by the defendant to the plaintiff in respect of the defamatory statement, ( e )     the making of any offer to make amends under section 22 by the defendant, whether or not the making of that offer was pleaded as a defence, ( f )     the importance to the plaintiff of his or her reputation in the eyes of particular or all recipients of the defamatory statement, ( g )     the extent (if at all) to which the plaintiff caused or contributed to, or acquiesced in, the publication of the defamatory statement, ( h )     evidence given concerning the reputation of the plaintiff, ( i )     if the defence of truth is pleaded and the defendant proves the truth of part but not the whole of the defamatory statement, the extent to which that defence is successfully pleaded in relation to the statement, ( j )     if the defence of qualified privilege is pleaded, the extent to which the defendant has acceded to the request of the plaintiff to publish a reasonable statement by way of explanation or contradiction, and ( k )     any order made under section 33 , or any order under that section or correction order that the court proposes to make or, where the action is tried by the High Court sitting with a jury, would propose to make in the event of there being a finding of defamation.” 54.     On 1 st November 2016, the Minister for Justice announced a public consultation process as part of the statutory review of the 2009 Defamation Act pursuant to section 5 of the Act. She stated: “While this review is a statutory requirement, it also examines significant issues for our society. Defamation law needs to strike the right balance between two important rights – the right to freedom of expression in a democratic society, and the right to protect your good name and reputation against unfounded attack.” THE LAW I.     ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION 55.     The applicant company complained that the amount of damages awarded against it was excessive and signified the absence of adequate and effective safeguards in domestic law, in violation of the right to freedom of expression under Article 10 of the Convention. This provision states, in so far as relevant: “1.     Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. ... 2.     The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, ...for the protection of the reputation or rights of others, ....” A.     Admissibility 56.     The Government argued that the application was manifestly ill ‑ founded. The complaint was essentially about the magnitude of the damages assessed by the jury, but that was a factual determination by the High Court that should not now be revisited. The decisive issue was whether domestic law contained sufficient safeguards for freedom of expression in the context of defamation. It had already been established in the Independent News and Media case that the requisite safeguards were present in domestic law. The proceedings in the present case had begun only four years after this Court’s assessment of the domestic system in that case. The applicant company had not suggested that the domestic courts had misapplied the relevant jurisprudential principles, nor had it put forward any reason for the Court to depart from its previous positive assessment of the safeguards provided by Irish law. 57.     The applicant company maintained that the application was admissible. 58.     The Court observes that although in the Independent News and Media judgment it approved the safeguards in domestic law both in principle and as they were applied in that case, the issue in the instant case is whether those safeguards were adequate and effective in preventing a disproportionate award of damages in defamation against the applicant company. The application is therefore not manifestly ill ‑ founded within the meaning of Article 35 § 3 (a) of the Convention. Nor does the Court consider it inadmissible on any other grounds. It must therefore be declared admissible. B.     Merits 1.     The parties’ submissions (a)     The applicant company 59.     The applicant company submitted that there had been a disproportionate interference with its freedom of expression. At the end of the proceedings, it had had to pay Ms L. a very high sum in damages (more than fifty times the average annual wage in Ireland) as well as her high legal costs, including those incurred on appeal. It was a very far-reaching interference with its right to freedom of expression that was not “prescribed by law” within the meaning of this Court’s case-law, since the domestic legal framework failed to meet the criteria of accessibility, foreseeability and clarity. The domestic law in force at the time allowed the jury in a defamation case practically unlimited discretion in assessing damages. According to the applicant company, as seen in the present case, the trial judge was not permitted to offer any useful or meaningful guidance to the jury, such as relevant comparisons or even a range of figures. While the 2009 Act provided for guidance to be given to juries in relation to damages, it did not fundamentally alter the domestic system. There was even a risk that the amount given to Ms L. would be taken as setting a benchmark in future defamation cases. 60.     The reality in Ireland was that jury awards in defamation cases were completely unpredictable. Furthermore, in the absence of reasons for jury decisions, there was no way for a publisher to foresee the potential quantum of damages in any defamation proceedings. This uncertainty had not been cured by appellate review in the present case. The Supreme Court had, without offering any explanation and with very little reasoning, assessed damages at a very high level, far in excess of what it had allowed in previous cases involving more serious libels. Its judgment had been strongly influenced by the level of damages assessed by the jury. Although the case might be regarded as exceptional, there was a major inherent flaw in the domestic system. This was clear from the O’Brien case (see paragraph   45 above); following the quashing of the original jury award, the jury in the second trial – unaware of the earlier proceedings in the case – had set damages at a much higher level. The appellate safeguard was thus ineffective in practice. 61.     The unpredictability of the domestic system meant that there was a strong and continuous chilling effect on the news media in Ireland, hindering them in reporting on matters of legitimate public concern. They had to face the uncertainty of potentially enormous damages in defamation. In a country the size of Ireland, with relatively small press companies, awards on the scale seen in this case could threaten the financial existence of companies, to the detriment of freedom of speech and the vibrancy of democracy. The uncertainty was aggravated by the fact that in Irish defamation law the jury decided on the meaning of the impugned words, independently of the meaning intended by the publisher. 62.     The Independent News and Media judgment should not be decisive for the outcome of the present case. In every case the interference with freedom of expression must be examined in its own right. The assessment of damages could not be shielded from the Court’s review by characterising it as a finding of fact. Moreover, the present case could be distinguished because the Supreme Court had set aside the jury’s assessment of damages as excessive. But it had then failed to apply the proportionality safeguard identified in the Independent News and Media judgment. Instead, it had taken an approach that was wholly inadequate and too deferential to the jury’s assessment. 63.     The applicant company criticised the damages awarded to Ms   L. by the majority of Supreme Court for failing to bear a reasonable relationsh