The huge damages being awarded in defamation cases by Irish courts will sooner or later lead to a newspaper's closure, a specialist lawyer has warned.
Awards of the size given in the case of PR woman Monica Leech versus the Evening Herald, who received 1.25 million euros (£967,000) even after the Supreme Court cut the jury's original award of 1.87 million euros (£1.54 million), meant that the Supreme Court appeared to have damages running into seven figures in mind for many cases, he told a media law conference in Belfast organised by the Belfast Solicitors' Association.
That, coupled with the high costs of litigation and the other pressures on the print media – declining circulations, the migration of readers to online news sources, and a drop in advertising spending during the recent recession – meant that sooner or later a libel case would close a newspaper, he said.
Monica Leech had sued over suggestions that she received government contracts because she had an affair with a government minister. The Supreme Court had said that while the defamation was "towards the higher end of the scale" it "could not be classed as one of the most serious libels to come before the Courts".
"There is, therefore, clearly room for a higher, and possibly much higher, award," Kealey told the conference, entitled A Brave New World for the Media and Creative Industries Landscape, and staged at Stormont on 28 February.
The Supreme Court, in setting aside the jury's original award in the Leech case, had stressed that it should be slow to interfere with a jury award, he went on.
It also reiterated the principle that "an award of damages cannot be so disproportionate as to have the effect of not just vindicating the good name of a citizen but of restricting the freedom of expression of a newspaper".
But it then held that, given that the defendants had published a series of articles, described as "part of a sustained campaign of just over two weeks", which damaged Mrs Leech personally and professionally, she should receive 1.25 million euros.
"The level of damages has been criticised, particularly in circumstances where the court described the defamation as 'towards the higher end of the scale' but not such that 'it could not be classed as one of the most serious libels to come before the Courts'," Kealey said.
Independent Newspapers has applied to take the case and issue of the level of damages to the European Court of Human Rights.
"An award of well over one million euros in those circumstances sits ill with the decision of the Supreme Court in MN v SM ( 4 I.R. 461)," Kealey said.
In that case the plaintiff had suffered years of sexual abuse, culminating in rape, at the hands of the defendant – and the Supreme Court cut the jury's award of 600,000 euros in damages (about £464,000 at current rates) to 350,000 euros (£270,000).
Another extremely high damages award was the 10 million euros handed to a former Kenmare Resources executive found to have been defamed in a press release by his company following an incident in which he sleepwalked naked to a female colleague's bedroom.
That case has also been appealed to the Supreme Court, which has not yet given its decision.
Many UK-based national newspapers are available in Ireland, or publish Irish editions, making them open to libel claims in the Irish courts.