Irish Defamation Law and the Jury: A Behavioural Economic Perspective

AuthorRuadhán Ó. Gráda
PositionFinal year BCL (Law with Economics) student at University College Dublin. He completed an exchange semester at the University of Texas School of Law, where he wrote the first draft of this paper
Pages49-66
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IRISH DEFAMATION LAW AND THE JURY: A BEHAVIOURAL ECONOMIC
PERSPECTIVE
Ruadhán Ó Gráda*
A INTRODUCTION
Ireland has earned an international reputation for its defamation laws, under which claimants
from around the world have been awarded millions of euros.
1
This article will, in light of
potential law reform, discuss damages awarded by Irish juries in defamation cases from a
behavioural economic perspective.
2
The focus of this article is on juries in defamation trials in
the Republic of Ireland, but a considerable amount of the behavioural and legal points made
apply to jury-awarded damages generally. I propose to consider whether the Irish legislature
intends damages in defamation cases to be unpredictable, a pro-plaintiff stance, or whether it
wishes for parties to be on equal footing, both in the courtroom and in conducting settlement
talks, the results of which are heavily related to the current position of the law. As I outline in
what follows, if the legislature is in favour of the former, the law is currently serving its
purpose. However, if the law seeks to equally balance the competing constitutional rights of
plaintiffs and defendants in defamation trials, there is more that could be done to fulfil that
objective.
It is an objective of the Irish legal system, like many others, to optimally balance the right to a
good name with the right to freedom of expression.
3
Each of these rights is protected by the
Constitution of Ireland. Freedom of expression is expressly protected under the European
Convention on Human Rights (ECHR).
4
The right to a good name is not expressly mentioned
under ECHR law but the case of Fürst-Pfeifer v Austria suggests that there is some protection
afforded to one’s reputation at ECHR level.
5
The relatively recent Defamation Act 2009
*Ruadhán Ó Gráda is a final year BCL (Law with Economics) student at University College Dublin. He completed
an exchange semester at the University of Texas School of Law, where he wrote the first draft of this paper. Work
experience at the Central Bank of Ireland and a small law firm in Princeton, New Jersey has inspired him to pursue
an international legal career on completion of his degree. The comments and support of Professors Sean H
Williams and Liam Delaney are gratefully acknowledged. Thanks also go to his family and to the editors and
reviewers of the Cork Online Law Review.
1
Kate Beioley, ‘Buzzfeed Case Shows Dublin’s Draw for Foreign Libel Claimants’ The Financial Times (London,
5 December 2019).
2
Department of Justice and Equality, ‘Review of the Defamation Act 2009 - Public Consultation: Invitation for
Submissions’ (2016)
http://www.justice.ie/en/JELR/Pages/Review_of_the_Defamation_Act_2009_Public_Consultation> accessed 5
March 2020.
3
Constitution of Ireland, Art 40.6.1°; Constitution of Ireland, Art 40.3.2°.
4
European Convention on Human Rights, art 10.
5
Fürst-Pfeifer v Austria App Nos 33677/10 and 52340/10 (ECtHR, 17 May 2016).
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retained the role of the jury in determining injury to one’s good name ‘in the eyes of reasonable
members of society’ and to award an appropriate amount of damages to those injured by a
defamatory publication.
6
Recent appellate hearings have confirmed that this position has been
accepted by the courts.
7
This legal position has been subject to significant scrutiny in recent years, following
abnormally high awards of damages, which according to some, are a result of poor jury
decision-making.
8
Cases such as Leech v Independent Newspapers (Ireland) Ltd exemplify
Irish juries’ ability to award massive amounts in damages.
9
In that case, the jury awarded €1.87
million in damages to Leech, who sued following a series of articles posted about her claiming
that she was having an extra-marital affair with the Irish Minister for the Environment at the
time. Factors considered in awarding damages included Leech being married with children and
that it harmed her profession as a businesswoman.
It was noted that the jury returned with a verdict on damages within minutes.
10
The Supreme
Court, considering the speed of the jury’s deliberation and the extremely high sum awarded,
decided to use its powers under section 13 of the 2009 Act to substitute the jury’s award of
€1.87 million with what the court believed to be a more reasonable award of €1.25 million. It
is worth considering for comparative purposes that this award is far higher than the maximum
award in such cases of £200,000 (approximately €237,000) in England and Wales, $250,000
(approximately €155,000) in Australia and $100,000 (approximately €69,000) in Canada.
11
This article will conduct a behavioural analysis of decision-making in Irish defamation trials.
Juries will be given particular weight in this analysis due firstly, to their central role in awarding
damages and secondly, to the controversy surrounding their role and decisions. The
susceptibility to bias of judges, the obvious alternative to juries in this case, will also be
6
Defamation Act 2009, s 31 (2009 Act).
7
White v Sunday Newspapers Ltd [2018] IESC 29, [2018] 3 IR 374; Higgins v The Irish Aviation Authority [2016]
IECA 322, [2016] 3 IR 308.
8
David Ward, ‘Let Judges, Not Juries, Decide Libel Damages’ The Sunday Times, (London, 23 August 2015);
Shane Phelan, ‘Time to Scrap Juries in Defamation Cases - Law Conference Told’ The Independent, (Dublin, 26
May 2018); Eoin O’Dell, ‘It’s Time to Abolish Juries in Defamation Cases’(Cearta.ie, 28 September 2017)
http://www.cearta.ie/2017/09/its-time-to-abolish-juries-in-defamation-cases/> accessed 5 March 2020.
9
Leech v Independent Newspapers (Ireland) Ltd [2007] IEHC 223.
10
Mary Carolan, ‘Monica Leech Libel Award Cut to €1.25m by Supreme Court’ The Irish Times (Dublin, 19
December 2014).
11
Lord Justice Jackson, ‘Review of Civil Litigation Costs: Final Report’ ( 2010) https://www.judiciary.uk/wp-
content/uploads/JCO/Documents/Reports/jackson-final-report-140110.pdf> accessed 5 March 2020;See
discussion of legislation in Alastair Mullis and Andrew Scott, ‘Something Rotten in the State of English Libel
Law? A Rejoinder to the Clamour for Reform of Defamation’ (2009) 14(6) Communications Law 173; Andrews
v Grand & Toy Alberta Ltd [1978] 2 SCR 229 (Can); Arnold v Teno [1978] 2 SCR 287 (Can); Thornton v Prince
George School District No 57 [1978] 2 SCR 267 (Can).

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