The law of Defamation in Ireland was previously governed by the Constitution, Common Law (body of law derived from judicial decisions) and the Defamation Act 1961, as amended. However, the Defamation Act, 2009 has now effectively codified the law of defamation in Ireland and has introduced some far reaching changes, not least the emphasis which the courts must now place upon their consideration of the European Convention on Human Rights as required by the introduction of the European Convention on Human Rights Act, 2003. Defamation law regulates the numerous and varied occasions of human activity when individuals have reason to speak unpleasantly of one another. The purpose of the law of defamation is to hold a balance between freedom of speech and the right to reputation or one’s good name. The law starts from the premise that the maker of the disparaging statement is liable.
What is defamatory?
The basic tenet of the law is that any statement, however made, and whether public or private, which is adversely reflective on the name or reputation of another is capable of being defamatory and of being sued upon. Defamation was traditionally divided into the two forms of libel and slander, however these two distinctions have now been abolished under the Defamation Act, 2009 and the entire tort now falls under the umbrella of defamation.
What must I Prove?
An actionable defamatory statement has three ingredients:
1. It must be published – publication in this context means that the statement must be communicated to a third party.
2. The words must be capable of having a defamatory effect, s 2 of the Defamation Act, 2009.
3. The alleged injured party must prove that they have been identified or that they are capable of being identified by the publication, s 3(6) of the Defamation Act, 2009.
The law attempts to fulfil the aim of protecting reputation by allowing an action to be brought against the publisher of a defamatory statement. There are, however, a number of defences, which a defendant can raise in response to an action in defamation. In this way, every citizen’s right to free expression is vindicated under Irish law. The main defences are listed below:
- Truth:truth is always a complete defence to an allegation of defamation. The defence of truth will succeed if the gist of the statement is true, even though certain details may not be accurate;
- Absolute Privilege:In certain circumstances the law will grant immunity from an action for defamation to the maker of a statement where public policy dictates that the recipient?s right to know prevails over the individual?s right to a good name. Thus, no action for defamation can arise from a statement made, for example, in either House of the Oireactas by a member of either House of the Oireachtas or any statement made by a judge or other person performing a judicial function. For a full list of the categories covered by absolute privilege see Section 17 of the 2009 Defamation Act. The law recognises that on some occasions an individual’s right to free expression should not be inhibited. Where a potentially defamatory statement is made on such occasion, the maker of a statement will be granted immunity from an action in defamation. There are two forms of privilege in Irish law: absolute privilege and qualified privilege.
- Qualified Privilege:This defence is particularly relevant to the media and may be pleaded as a defence in circumstances where the law recognises that a person may have a duty to speak to others who have a reciprocal interest in receiving the information. However, it must be noted that malice destroys this privilege.
- Fair and Reasonable Publication on a Matter of Public Interest:Again this defence is particularly relevant to the media and will apply when it can be proven that the statement was made in good faith on a subject of public interest for the benefit of the public. The statement must be in all circumstances fair and reasonable.
- Honest Opinion:In order to plead the defence of ?honest opinion, the publisher must show that their opinion was honestly held.
- Apology:An apology may be issued as a part-defence, in that it can go towards mitigation of damages.
- Offer of Amends:A person who publishes a defamatory statement may make an offer of amends, which must be in writing. They may chose to publish a correction or an apology or make a payment to the injured party.
- Consent:No action for defamation can arise out of a statement that the complainant consented to the publication of.
- Innocent Publication:This defence is particularly relevant to publishers as repetition of a defamatory statement counts as a separate act of defamation. A person who is not the author of the statement at issue, who took reasonable care in relation ?to its publication and had no reason to believe that he/she caused or contributed to the defamatory publication, will not be guilty of defamation.
The only method by which the Irish Courts can vindicate the good name of a person who has been defamed is by awarding damages (a sum of money paid in compensation for loss or injury). Neither the court, nor juries, can order a defendant to apologise, to offer a right to reply or, indeed, to admit that they were wrong. The majority of the defamation cases are heard by a jury in the High Court. The jury determines both liability and quantum.
Further, at present, they decide the level of the award with only very limited guidance from the trial judge who cannot, for example, suggest financial parameters for any award or draw comparisons with personal injury damages. In effect, the trial judge is limited to telling the jury to be fair to both sides in light of the evidence before them. There is the widespread view that Irish juries tend to favour plaintiffs. However, a number of decisions in recent years, starting perhaps with Beverly Cooper-Flynn’s failed action against RTE, challenges this view.
In 2003, the Legal Advisory Group on Defamation (the “Group”) – established by the Minister for Justice – recommended in its report that the defamation laws be reformed and a statutory press council created.
On January 1, 2008 the Press Council of Ireland and the Office of the Press Ombudsman was established; everybody in Ireland now has access to an independent press complaints mechanism that is quick, fair and free. The objectives of the Press Council and the Press Ombudsman are:
- to provide the public with an independent forum for resolving complaints about the press;
- to resolve all complaints quickly, fairly and free of charge;
- to maintain the highest standards of Irish journalism and journalistic ethics;
- to defend the freedom of the press and the freedom of the public to be informed.
The Defamation Act 2009 came into effect on 1 January 2010 and has introduced some significant changes to defamation law in Ireland.
This long awaited Act has abolished the distinction between libel and slander and introduced a new tort of defamation, with a limitation period of one year. The Act, however, is not retrospective and, as such, complainants still have six years to instigate proceedings in relation to an article published prior to January of this year.
The Act amends existing practice whereby the court could not order a defendant to apologise, correct a false statement or even admit they were wrong. The court can now summarily dispose of a claim pre-trial, and issue Corrective and Prohibition Orders as well as Declaratory Orders in the Circuit Court.
A defendant can now make a lodgement without an admission of liability. If the plaintiff is successful in his claim, but the damages awarded are not more than the sum lodged, the defendant will be entitled to his costs against the plaintiff from the date of the lodgement. This can act as an incentive to settle the case before trial. Previously, the lodgement procedure was not widely utilised in the High Court as defendants had to admit liability.
The jurisdiction of the Circuit Court for defamation matters has been increased to €50,000, which should ensure more matters are instigated in the Circuit Court and will reduce the potential legal costs of claims.
The Act has overhauled the potential defences available, with the most significant changes being the introduction of the defence of fair and reasonable publication and the offer to make amends. In order to rely on the defence of fair and reasonable publication a newspaper will need to show that it acted in good faith on a matter of public interest and that the extent of the publication did not exceed what was necessary. The offer to make amends must be made before the defence is delivered and can constitute a full defence to a claim. The offer must be to make and publish a suitable correction and a sufficient apology and pay damages and costs. However, some other “new” defences are simply a restatement of old ones. For example, the defence of justification is now known as the defence of truth and the defence of fair comment has been renamed the defence of honest opinion.
The Act places the Press Council of Ireland on a statutory footing. The Press Council cannot award compensation, impose a financial penalty or oblige a newspaper to discharge a complainant’s costs; however, it can force a newspaper to publish a correction or any determination made by it.
The introduction of the offer to make amends procedure and lodgements without an admission of liability should ensure that more matters can be disposed of pre-trial. The provisions of the Act are as yet untested and it will be interesting to see how some of the more novel aspects of the new regime evolve in the courts.
If you believe that you may have a legal claim relating to defamation law, please contact Able Solicitors by calling 01 4736963 or by emailing us the details of your case for your on-line assessment. A solicitor who specialises in this area will contact you to advise you of your legal rights and entitlements.