Article Story: WISE WORDS FROM LORD HOFFMAN ON LIBEL DAMAGES IN THE GLEANER v ADAMS CASE

Date: 15.08.2003

Many complaints have been made over the years by the media, and in particular the print press, about the level of damages in libel awards. With the unique advantage the press has to ensure its views are heard, editors, and media lawyers who act for the print media have joined in a chorus of disapproval of substantial awards.  The press claims such awards deters it from carrying out what they claim as their public duty and right; to speak as their judgement and opinion leads them about issues and individuals who they deem worthy of scrutiny.

The propaganda barrage from this massively powerful pressure group has no effective counter. The press (in particular) hunts as a pack, and grinds out its message before the judiciary who know they will be lauded when apparently siding with the press, and brutally panned if they are perceived as taking against them.  In this struggle between the rights of the individual and the (commercial) rights of the media, there is no real contest. The only guardian of the rights of the individual not to have their reputation or privacy reduced to collateral damage in circulation wars is the judiciary, which sometimes seems to forget the wholly disproportionate power which the commercial media wheels over the individual in virtually every respect.

One judge who is a specialist in media issues recently refused an application by an individual for the right to seek a declaration that the very serious allegations made against him were false, saying (inter alia) that were such applications to be permitted, it would be too expensive for the media to defend them. So it is then that at least one judge has reached a point where he considers that the massively rich and powerful media corporations need their profit margins to be protected from such applications by individuals for the right to seek to restore their reputation in the face of media onslaught.

If only the judiciary as a whole would adopt the far more realistic and balanced approach of Lord Hoffman, sitting as a member of the Judicial Committee of the Pricy Council. In his insightful judgement on an application by a newspaper to reduce a damages award made against it in a libel action, he commented on the value of substantial libel awards to protect individuals from what would otherwise be the unrestrained consumption of their privacy and reputation to meet the needs of the commercial media (my words not his).

The defendant was a Jamaican newspaper, The Daily Gleaner. The claimant (Eric Abrahams) had been Minister of Tourism for Jamaica, and was the subject of allegations that he had taken bribes from US public relations and advertising agencies in return for awarding them lucrative contracts or promoting tourism in Jamaica. Mr Abrahams won, and was initially awarded J$80.7 million in damages (the UK equivalent of £1.2 million). The defendants appealed, and the Jamaican Court of Appeal reduced the awards to J$35 million, the equivalent of £533,000. The defendants then appealed to the Privy Council that the damages were still excessive, arguing in particular that the Jamaican Court of Appeal’s decision on the level of damages “did not have sufficient regard to the inhibiting effect which so large an award would have upon the exercise of the constitutional right of freedom of expression”.

Almost inevitably, The Daily Gleaner and its editor Dudley Stokes (who was the second defendant) were represented by Lord Lester, who (equally inevitably) made submissions about the “chilling effect” of such an award on this undoubtedly constitutional and human right.

Although there were issues before the court concerning the trial summing up, the aspects of the judgement of most trial interest were the Privy Council’s observations on the issue of damages. Lord Lester’s complaint that the Jamaican Court of Appeal had included a punitive element in their award was rejected by Lord Hoffman who observed that since the leading authority on exemplary damages (Rookes v Barnard [1964] AC 1129), “it has been recognised that compensatory damages may also have a punitive, deterrent or exemplary function. What distinguishes exemplary damages for the purposes of Rookes v Barnard dichotomy is that they do not have a compensatory function”

Lord Hoffman considered the three ways of giving the jury guidance as to the amount of the award of damages and libel cases. The first is that they should consider the purchasing power of money (about which Lord Hoffman had little to say). As to the second, awards in other libel cases, Lord Hoffman observed robustly; “the practice is not without some danger of time-consuming and inconclusive arguments before the jury about the facts of other cases and the extent to which other awards are truly comparable.”

Lord Hoffman then addressed the third form of comparison, by reference to awards in personal injury cases.  After considering the history of this principle, and the arguments for and against it, Lord Hoffman expressed very clearly his doubts as to the appropriateness of such comparisons.

The first distinction he identified was that,

“Personal injury awards are almost always made in actions based on negligence or breach of statutory duty rather than intentional wrong doing (as is usually the case in libel actions).”

Lord Hoffman also observed that personal injury claims are

“almost always paid out of public funds or by insurers under policies which are not very sensitive to the claims record of individual defendants. The cost is therefore formed by the public at large or large sections of the public such as most risks or consumers. The exemplary and deterrent elements in personal injury awards are minimal or non existent.” He went on to consider how inevitably such attempts to place value on injury or death created “all kinds of anomalies”.

In a refreshing recognition of the vital public policy value of libel damages, Lord Hoffman went on to observe:-

“The damages [in defamation cases] often serve not only as compensation but also as an effective and necessary deterrent. The deterrent is effective because the damages are paid either by the defendant himself or under a policy of insurance which is likely to be sensitive to the incidence of such claims. Indeed, the effectiveness of the deterrent is the whole basis of Lord Lester’s argument that higher awards will have a “chilling effect” on future publications. Awards in an adequate amount may also be necessary to deter the media from riding rough shod over the rights of other citizens.”

The second distinction between libel and personal injury awards identified by Lord Hoffman is that

“it is usually not difficult for the plaintiff to prove that his injury caused inability to work and consequent financial loss…In defamation cases, on the other hand, it is usually difficult to prove a direct cause or link between the libel and loss of any particular earnings or any particular expenses.”

Lord Hoffman went on to observe that:-

“Defamation awards, on the other hand, are also conventional figures, but influenced (among many other things) by society’s views on need to use private litigation as a means of controlling irresponsible behaviour by the media.”

Lord Hoffman concluded (on behalf of the Privy Council) that it was not right for it to interfere with the court figure set by the Jamaican Court of Appeal, of which Lord Hoffman said:-

“They were entitled to take the view that if it had a chilling effect upon this kind of conduct, that would be no bad thing. Their Lordship see no reason to think that the award of so large an amount in the special circumstances of this case will inhibit the responsible journalism.”

The virtue of substantial libel awards to promote responsible journalism has therefore been recognised in Lord Hoffman’s astute judgement. The importance of substantial libel damages to disincentivise newspapers (in particular) from engaging in irresponsible journalism which both infringes the rights of the individual and causes the general public as a whole to be misinformed is one which rarely set out with such force by a member of a judiciary. For those who so value the right of free speech that they aspire to a situation where the media is provided with proper incentives to exercise it responsibly these are refreshing words.  Let us hope that they filter down the grass roots level of the (first instance) judiciary, and that juries are again permitted to exercise their constitutional right to protect the individual against not only the powerful state, but the no less powerful commercial media.

As a postscript, awards for privacy/breach of confidence actions in the region of £3,500 will certainly not deter the media from the other form of infringement of the rights of an individual. Whereas it is perhaps possible to restore the reputation of an individual, privacy once lost can never be recovered. The privacy of an individual is traded as a commodity in Fleet Street, and this will only end when there is adequate disincentive to editors in the form of substantial damages awards for invasions of privacy.

Jonathan Coad

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