A €140,000 defamation award against TV3 over a broadcast which mistakenly identified a solicitor as another lawyer who was before a court on criminal charges has been cut to €36,000 by the Court of Appeal.
Dublin-based solicitor David Christie sued the station after he was wrongly identified in an evening news report on November 11th, 2013, as solicitor Thomas Byrne, who was later jailed for 12 years for fraud.
After he was awarded €140,000 in 2015 by the High Court, TV3 was ordered to pay him €70,000 if it wanted to appeal.
A three-judge appeal court said on Thursday the appropriate award was €36,000, and it deferred to later this month the issue of costs.
In its broadcast, TV3 used a voiceover stating the other solicitor, Mr Byrne, was accused of 50 counts of theft and forgery involving €52 million.
But the sole footage was of Mr Christie making his way, on his own, to the Criminal Courts of Justice.
Mr Christie, who represented Mr Byrne in that case, demanded an apology and compensation.
‘Innocent mistake’
TV3 said what had happened was “an innocent mistake due to an editing error” and sincere apologies were offered. It also offered to broadcast a clarification and apology, but disputed that the piece was grossly and seriously defamatory.
It also said because Thomas Byrne was well known, anyone who recognised Mr Christie would be well aware he was David Christie, not Thomas Byrne.
Mr Christie rejected TV3’s proposals and the station went ahead and broadcast an apology on November 15th, 2013.
Mr Christie sued and TV3 sought to have the matter dealt with under the 2009 Defamation Act, whereby it would make an offer of amends which could be agreed between the parties or determined by a court.
The matter went before Ms Justice Iseult O’Malley in the High Court for determination, and she said the starting point for the award should be €200,000.
Mitigation of damages
Giving TV3 a one-third discount for mitigation of damages due to an unqualified offer of amends having been made, the appropriate award was €140,000, she said.
TV3 appealed, arguing a €200,000 starting point for damages for a case of this kind was too high, and that appropriate weight had not been given to the nature of the apology and offer of amends.
It also said there should be a higher level of discount, 50 per cent, given to the broadcaster.
In its decision, the Court of Appeal said while it was a serious defamation of Mr Christie, it was not at a level which would merit a starting point of €200,000.
Certain factors had to be taken into account which took away from the seriousness of the defamation, Mr Justice Gerard Hogan said on behalf of the appeal court.
These factors were the one-off nature of the broadcast, its relatively short duration, the failure to name Mr Christie and the lack of animus towards him.
There was also the fact that it was an obvious error which those closest to Mr Christie - his family, friends, work colleagues and clients - would surely know, he said.
The appropriate starting point for considering damages was, accordingly, €60,000.
Entitled to discount
While the apology published by TV3 was satisfactory so that the station was entitled to a substantial discount, that discount figure could itself have been higher had, for example, the apology acknowledged that he had been defamed and had apologised for the distress and embarrassment which the publication had caused, Mr Justice Hogan said.
With a starting point of €60,000 and increasing the level of discount from one-third to 40 per cent, he accordingly substituted a figure of €36,000 for the €140,000 award.
Earlier, Mr Justice Hogan said the Supreme Court had frequently stated the law of defamation involves striking a balance between right to a good name and the right to free speech.
The constitutional balance necessarily implies that an award for damage must be measured and appropriate.