DEFAMATION LAW
IN IRELAND
Defamation is one of the most serious dangers facing journalists and publishers today. Eighty per cent of all defamation actions are brought against the media - and a libel action can bankrupt a small newspaper or radio station.
Balance of rights
Journalists may feel that they should have the right to say whatever they
like. After all, Article 40.6.1.i of the Irish Constitution says that the State
guarantees the right of citizens to express freely their convictions and
opinions. But the right of freedom of expression in
The Article goes on to say that, because of the importance of educating public
opinion, the State will try to ensure that the organs of public opinion such as
the radio and the press (it doesn't mention television or the internet) keep
their right to liberty of expression, but they shall not be used to undermine
public order, morality or the authority of the State.
The right of freedom of speech is also guaranteed by Article 10 (1) of the
European Human Rights Convention, which provides that: "Everyone has the
right to freedom of expression. This right shall include freedom to hold
opinions and to receive and impart information and ideas, without interference
by public authority and regardless of frontiers."
But Article 10 (2) subjects this freedom to such restrictions "as are
necessary in a democratic society in the interests of national security,
territorial integrity or public safety, for the prevention of disorder or
crime, for the protection of health or morals, for the protection of the
reputation or rights of others, for preventing the disclosure of information
received in confidence or for maintaining the authority and impartiality of the
judiciary".
Of course, the Irish Constitution does not only guarantee freedom to the media.
It also guarantees to respect the personal rights of citizens. Article 40.3.2
of the Constitution says "the State shall, in particular, by its laws,
protect as best it may from unjust attack (and, in the case of injustice done,
vindicate) the life, person, good name and property rights of every
citizen."
In the 1988 case of Kennedy v Hearne, the Irish High Court specifically
acknowledged the role played by the law of defamation in vindicating a
citizen's right to his good name.
What is defamation?
The law of defamation in
The traditional definition of defamation was publication of a false statement
which subjected a person to hatred, ridicule or contempt. That rather archaic
definition has given way to a more modern one: according to the Defamation Act
2009, a defamatory statement is one which tends to injure a person’s reputation
in the eyes of reasonable members of society. (That means that a person cannot
sue for having his reputation lowered in the eyes of, for example, other
members of his criminal gang!)
Defamation has traditionally been divided into two forms: libel and slander.
Historically, libel was the written form of defamation, while slander was the
spoken form. The advent of modern technology has made those definitions
obsolete. Even though broadcasting is, in one way, a more transient medium than
newspapers, the invention of tape and video recorders and the internet means
that a false statement can now be preserved in the same way as a newspaper
cutting. So today, a defamatory statement broadcast on radio or television or
the internet would be regarded as libellous, rather than slanderous. The 2009
act abolishes the separate torts of libel and slander and replaces them with
the “tort of defamation”.
An actionable defamatory statement has three ingredients:
- it must be published,
- it must refer to the complainant and
- it must be false.
Publication
A defamatory statement is only actionable if it is published. In the 1840
case of Ahern v Maguire, Chief Baron Brady said that, if a letter
"however slanderous, is received only by the person to whom it is
addressed, and does not go beyond him, there is no publication of it in law to
support an action for libel". (But a wrongly addressed letter containing
defamatory remarks would be actionable if opened by someone other than the
subject of the remarks.)
A person who is aware that a libellous report is about to be published may
apply to the courts for an injunction to prevent publication. But in the case
of National Irish Bank v Radio Telefis Eireann [1998] 2 IR 465, the Supreme Court said that,
if the publisher made out a strong case for publication on a public interest
basis, the court, in its discretion, should not grant the injunction, but leave
the applicant to seek a remedy in damages.However, in
1998 the High Court granted an interlocutory injunction to nightclub owner John
Reynolds to prevent former solicitor Elio Malocco publishing what Reynolds claimed would be a
disparaging article about the club owner in a new magazine, Patrick [1998]
IEHC 175. Mr Justice Kelly said this was "a jurisdiction of a delicate
nature" and "the Court must be circumspect to ensure that it does not
unnecessarily interfere with the right of freedom of expression". He said
he would not set out "hard and fast manner" the factors which the
Court could take into account in the exercise of this discretion, but to refuse
an injunction "would be to consign the plaintiff to a trial where damages
would be an inadequate remedy because of the virtual impossibility of ever
recovering any sum awarded".
In order to prove publication, it is only necessary to show that one person
received the communication and that his opinion of the subject was lowered as a
result. A jury may, however, take into account the extent of publication when
considering damages, including the extent of internet publication.
Identification
A defamatory statement need not necessarily name anyone. It may suggest a
person or persons by - for example - their profession, location or connections.
A former garda commissioner was awarded £30,000
damages for the use of a graphic which featured his ears in a television
programme on corruption! And a senior barrister settled a High Court action
against Irish television for an undisclosed amount for using a graphic of her
car in a story about drunk drivers.
If just one person gives credible evidence that he recognised the complainant
by the description or image, that is enough to ground
a defamation action.
Only a false statement is actionable. But defamation differs from other torts
in that a statement will be presumed to be defamatory until proved otherwise.
If a defendant wishes to plead justification as a defence, he has to prove the
truth of the statement. No matter how old the allegation or how obscure or how
intrusive of a person's privacy, a complainant is not entitled to bring an defamation action in relation to publication of a true
statement.
A false report which is published maliciously is likely to attract higher
damages than an erroneous report published innocently - but damages for errors
can still be high enough to put media organisations out of business.
Privilege
If a statement is privileged, a potential plaintiff has no cause of action.
There are two types of privilege: absolute privilege and qualified privilege.
In the case of absolute privilege, the intentions of the publisher are
irrelevant.
For example, a Dáil deputy or member of the Seanad
may say what he wishes about a person within the confines of the chamber. No
matter how scurrilous the allegation or how improper the motive for making it,
he may not be sued for that statement. Similarly in a court of law, a judge may
not be sued for anything he may say, and a barrister may make whatever allegations
he pleases while on his feet, without fear of an action for defamation. (A
lawyer who makes irrelevant, insulting and provocative statements may be guilty
of contempt of court, but that is a different matter!)
A fair, accurate and contemporaneous media report of Oireachtas or court
proceedings is also absolutely privileged, even if the reporter is motivated by
malice. Clearly this exception is aimed at allowing free speech for members of
the judicial and legislative arms of government, and for accurate reports of
their views.
Qualified privilege attaches to communications where the informant has a legal,
moral or social duty to communicate the information and the recipient has a
similar duty to receive it. For example, a person may write to an employer
making allegations of dishonesty or incompetence against an employee. If the
allegations are made in good faith, even if they are factually wrong, the
communication is not actionable. This privilege is defeated by proof of malice.
The Defamation Act also provides qualified privilege for reports of the
proceedings of certain foreign organisations (such as the Court of Justice of
the European Communities), copies of entries in public registers and notices,
without the necessity to correct or explain such reports.
Qualified privilege is also granted for reports of certain public meetings,
organisations and bodies (such as local authorities and tribunals)
"subject to explanation or contradiction". In these cases, the
publisher will lose the privilege if he fails to amend or clarify an erroneous
statement.
Occasionally an apology published by a media organisation may reflect adversely
on the skill and ability of the journalist who wrote or broadcast the article
in question. In the 1938 case of Willis v Irish Press, a journalist sued
his employer for publishing what he claimed was an unwarranted apology. The
Supreme Court ruled that publication of the apology was privileged, as it was a
matter of self-defence for the newspaper. The rationale of that decision,
coming at about the time of the introduction of the Constitution, might well be
considered dubious today.
Damages
Damages in a defamation case may be high enough to put a media organisation
out of business - even before considering the matter of legal costs. Because of
the high risk of defending a defamation action, the unpredictability of juries
and the heavy legal costs of a hearing, the majority of libel cases have
traditionally been settled before coming to court.
But even where an action is still settled on the steps of the court, damages can still be very high indeed.
It's reported that the national broadcaster, RTE, paid Fr Kevin Reynolds an estimated €800,000 for libelling him
in the Prime Time Investigates programme "Mission to Prey" in May 2011. RTE's Director-General, Noel Curran, said the false allegation that the priest had raped a young African girl and fathered a child by her
was "one of the gravest editorial mistakes ever made" in the history of RTE.
A defendant who loses a defamation action is likely to have to meet the legal
bill of both sides. He may limit his exposure to costs by lodging money in
court in an offer of settlement.
A publisher who denies liability must take the risk of losing a case after it
has been running in court for some days - or even weeks - with the attendant
enormous legal bill. The highest award ever given by an Irish court in
defamation was €10 million in November 2010. The award was made to businessman Donal Kinsella, who sued his
former employer, Kenmare Resources, over a press release it sent out concerning
an incident where he had sleep-walked into a woman’s bedroom while on company
business in Africa. The jury awarded €9 million in compensatory damages and €1
million in aggravated damages. Prior to the Kinsella
case, the highest libel award was €1.9 million in damages awarded to Mrs Monica
Leech over a series of articles in the Evening Herald newspaper in 2004 which falsely
suggested that she had had an affair with a government minister.
If a publisher pleads justification (that an alleged fact is substantially
true) and this turns out not to be the case, the jury may award aggravated
damages as a punishment for the additional harm done to the complainant's
reputation. For example, when Elton John sued the Sunday Mirror in 1993, he was
awarded £75,000 in ordinary damages, but almost four times that amount in
punitive damages. (This was reduced to a total of £75,000 on appeal.)
If a jury finds that a complainant has been libelled, juries have traditionally
awarded at least nominal damages. Traditionally, this was a farthing. In the
1955 case of
Since the establishment of the Press Ombudsman and the Press Council of Ireland
in 2007, anyone who believes he or she has been defamed may complain to the
Press Ombudsman. If the ombudsman finds in their favour, he may instruct the
media organisation to publish an appropriate apology or correction. The Press
Council was set up following the 2003 report of the government's legal advisory
group on defamation, which also recommended reform of the 1961 Defamation Act.
The 2009 act comprises 44 sections, including a definition of defamation,
defences, remedies and the establishment of criminal liability for blasphemy.
In the time-honoured draftsmen’s tradition of never using a single word where a
clause (or two, or three) will do, the legislation is extraordinarily
complicated in places. This is a somewhat simpler version:
The limitation period for defamation actions is reduced from six years to one
year from the date of first publication. The period can be extended to up to
two years by court order, but the court will not extend the period unless an
extension is required in the interests of justice and the prejudice suffered by
the plaintiff would significantly outweigh the prejudice to the defendant. When
deciding whether to extend time, the court will consider the reason for the
failure to bring the action in time and the extent to which the delay means
that relevant evidence is no longer available.
A statement may be made orally or in writing, broadcast on radio or television
or published on the internet, and includes electronic communications and visual
images, sounds, gestures and any other method of signifying meaning.
The “tort of defamation” consists of the publication, by any means, of a
defamatory statement about somebody to one or more person. A statement is not
considered defamatory if it is published only to the person to whom it relates.
It is also not defamatory if published to another person, as long as:
- the publisher did not intend to publish the statement to the other person, and
- it was not reasonably foreseeable that publication to the first person would result in publication to the other person.
Proof of special damage – or actual loss – is not required except actions for
slander of title, slander of goods or malicious falsehood. In such cases, the
plaintiff has to prove special damage or that publication of the statement was
calculated to cause (and likely to cause) financial loss in respect of his
property or office, profession, calling, trade or business.
The plaintiff must also prove that the statement was untrue, was published
maliciously and referred to the plaintiff, his property or office, profession,
calling, trade or business.
Where the plaintiff or defendant is making an allegation of fact, he must swear
an affidavit verifying the allegations within two months of service of the
pleadings. The maximum penalty for swearing a false or misleading affidavit is
a fine of €50,000 and five years’ imprisonment.
Even if a statement contains several false allegations, a plaintiff will have
only one cause of action. Similarly, if the same defamatory statement is made
to several people, there is only one cause of action, unless the court decides
otherwise.
If a defamatory statement is published about a group of people, any member of
that group has a cause of action if the statement could reasonably be
understood to refer to that person, either because of the number of people in
the group or the circumstances in which the statement is published.
The new act applies to companies as well as individuals, and a company may
bring a defamation action whether or not it has incurred any financial loss as
a result.
The problem of excessive jury awards of damages being awarded by High Court
juries is tackled by the provision in section 13 that, on appeal, the Supreme
Court may substitute an “appropriate amount for any High Court jury award.
If asked, a judge may decide – in the absence of the jury –
whether a statement is “reasonably capable” of having the suggested imputation,
and whether that imputation is reasonably capable of having a defamatory
meaning.
If the court rules that a statement is not reasonably capable of having the
suggested imputation or being defamatory, it must dismiss that part of the
action.
Defences
All earlier defences are abolished by the new act, except certain statutory
defences. The main defence is now the defence of truth, where a
defendant proves that his statement is true in all material respects. This
defence may still be used, even if the truth of every allegation is not proved,
as long as the unproven words do not materially injure the plaintiff’s
reputation in the light of the remaining true allegations.
The existing defence of absolute privilege is retained and extended to
include any:
(a) statement made in either House of the Oireachtas by a TD or Senator,
(b) report of a statement by a TD or Senator produced by authority of either
House,
(c) statement made in the European Parliament by an MEP,
(d) report of a statement by an MEP produced by authority of the European
Parliament,
(e) statement made in a court judgment,
(f) statement made by a person performing a judicial function,
(g) statement made by a party, witness, lawyer or juror during judicial
proceedings,
(h) statement made during and connected with proceedings involving limited
functions of a judicial nature (such as the Employment Appeals Tribunal),
(i) fair and accurate report of public proceedings or
a decision of any court in the Republic or Northern Ireland,
(j) fair and accurate report of certain family law proceedings,
(k) fair and accurate report of proceedings of courts including the Court of
Justice of the European Union, the Court of First Instance of the European
Union, the European Court of Human Rights and the International Court of
Justice,
(l) statement made in proceedings before a committee appointed by either or
both Houses of the Oireachtas,
(m) statement made in proceedings before a committee of the European
Parliament,
(n) statement made during and connected with proceedings before a Tribunal of
Inquiry,
(o) statement in a tribunal report,
(p) statement made during and connected with proceedings before a commission of
investigation,
(q) statement in a commission report,
(r) statement made during a coroner’s inquest or in a decision or verdict at an
inquest,
(s) statement made during an inquiry conducted by authority of the government,
a minister, the Dáil or Seanad or a court,
(t) statement made during an inquiry in Northern Ireland on the authority of
the British government, Northern assembly, minister or court,
(u) statement in a report of such inquiries,
(v) statement made during and connected with proceedings before an arbitral
tribunal, or
(w) statement made in accordance with a court order in the Republic of Ireland.
Qualified privilege may be pleaded as a defence where a statement was
published to a person who had a legal, moral or social duty to receive the
information, or where the defendant reasonably believed that the person had
such a duty or interest, and the defendant had a corresponding duty to
communicate the information.
It is a defence for a defendant to prove that the statement Is
covered by Part 1 of Schedule 1 or is in a report or decision referred to. It
is also a defence to prove that a statement is in a report referred to in Part
2 of Schedule 1, unless the plaintiff can prove that he asked the defendant to
publish a reasonable statement of explanation or contradiction, and the
defendant failed to do so, or did so in an inadequate or unreasonable way.
These privileges do not protect publication of any statement prohibited by law,
or statements that are not of public concern and not published for the public
benefit.
The defence of qualified privilege fails if the plaintiff proves malice.
However, the defence will not fail just because the statement was published to
someone else by mistake.
Where a defence of qualified privilege fails in the case of one defendant,
another defendant may still plead that defence unless he was vicariously liable
for the acts or omissions of the first defendant which led to the publication.
The “honest opinion” defence is available for honestly-held opinions as
long as—
- at the time of publication, the defendant believed in the truth of the opinion (or thought that its author believed it to be true),
- the opinion was based on proven (or honestly believed) allegations of fact that were known to those to whom the statement was published, or
- the opinion was based on proven (or reasonably likely) allegations of fact which were privileged and the opinion related to a matter of public interest.
Where a defamatory opinion is published jointly by more than one person, the
defence of honest opinion is available to a defendant who does not honestly
believe it, unless he was vicariously liable for the acts or omissions of the
joint publisher at the time of publication. To distinguish between allegations
of fact and opinion, a court will consider:
- the extent to which the statement is capable of being proved;
- whether the statement was likely to have been reasonably understood as an opinion, rather than a fact; and
- the words used and the extent of any qualification, disclaimer or caution.
A person accused of defamation may make an offer of amends. Such an
offer must be in writing and state:
- that it is an offer to make amends under section 22, and
- whether it relates to the entire statement, part of it or a particular defamatory meaning only.
An offer to make amends cannot be made after the defence has been delivered.
However, an offer may be withdrawn before it is accepted and a new offer made.
An “offer to make amends” means an offer—
- to make a suitable correction and sufficient apology,
- to publish the correction and apology in a “reasonable and practicable” manner, and
- to pay agreed compensation, damages and costs.
If an offer to make amends is accepted and the parties agree on the
implementation of the offer, the court may direct the defendant to take those
measures. If the parties do not agree, the person who made the offer may make a
correction and apology in a statement before the court in terms approved by the
court and give an undertaking about the manner of publication. If the parties
cannot agree on damages or costs, the court will decide the matter, taking into
account the adequacy of any steps already taken to comply with the offer.
Once an offer to make amends is accepted, no defamation action can be brought
in respect of the original statement unless the court considers that it is just
and proper to so do. It is a defence to a defamation action to prove that an
offer to make amends was not accepted, unless the plaintiff proves that the
defendant knew when the original statement was published that it referred to
the plaintiff and was false and defamatory. If a qualified offer of amends is
not accepted, the defence applies only to that part of the statement.
A person who offers to make amends does not have to plead it as a defence. If a
defendant does plead this defence , he cannot plead
any other defence. If the defence is pleaded in respect of a qualified offer
only, no other defence may be pleaded in respect of that part of the statement.
A defendant may give evidence in mitigation of damages that he—
- made (or offered) an apology and
- published (or offered to publish) the apology with similar prominence to the original statement as soon as practicable after the complaint or the bringing of the action, whichever was earlier.
A defendant who intends to give such evidence must notify the plaintiff in
writing in advance.
One important change in the new act is that an apology no longer constitutes
an express or implied admission of liability and is not relevant to the
issue of liability. Evidence of such an apology is not admissible in any civil
proceedings as evidence of liability.
The defence of consent may be pleaded where a plaintiff consented to
publication of the impugned statement.
The defence of fair and reasonable publication on a matter of public
interest may be pleaded where a defendant can prove that a statement was
published—
- in good faith and
- during (or for the purpose of) discussion of a subject of public interest for the public benefit.
The manner and extent of publication must not exceed what is
reasonably sufficient, and it must be fair and reasonable to publish the
statement.
In deciding whether publication was “fair and reasonable”, the court can take
into account any relevant matter, including:
(a) the extent to which the statement refers to the performance of public
functions;
(b) the seriousness of any allegations;
(c) the context and content (including the language) of the statement;
(d) the extent to which the statement distinguished between suspicions,
allegations and facts;
(e) the extent to which exceptional circumstances required publication of the
statement at that time;
(f) where the publisher was a member of the Press Council, the extent to which
the person adhered to the council’s code of standards and the decisions of the
Press Ombudsman and Council (or (g) equivalent standards, where the publisher
was not a member of the Press Council).
(h) the extent and prominence of the plaintiff’s
version of events or
(i) attempts made by the publisher made to obtain and
publish a response; and
(j) any attempts made to verify the allegations.
Where a plaintiff failed or refused to respond to the defendant’s attempts to
establish his version of events, this does not imply consent to publication or
entitle the court to draw any inference.
A statement issued by the Department of Justice, Equality and Law Reform on
The defence of innocent publication may be pleaded where the defendant
can prove that—
- he was not the author, editor or publisher of the statement,
- he took reasonable care in relation to its publication and
- he did not know, and had no reason to believe, that his actions would lead to defamation proceedings.
A person is not considered the author, editor or publisher of a statement if he
was responsible only for the printing, production, distribution or selling of
printed material, or the processing, copying, distribution, exhibition or sale
of a film or sound recording or electronic recording or storage, or the
playback or distribution equipment.
In deciding whether a person took reasonable care about his actions, the court
will consider—
- the extent of that person’s responsibility for the content of the statement or the decision to publish it,
- the nature or circumstances of the publication, and
- the person’s previous conduct or character.
Remedies
A person who claims to be the subject of an alleged defamatory a statement may
apply to the Circuit Court for a declaratory order that the statement is
false and defamatory. The court will make a declaratory order if it is
satisfied that—
- the statement is defamatory of the applicant and the respondent has no defence,
- the applicant requested the respondent to publish an apology, correction or retraction of the statement, and
- the respondent failed to do so or did not give the apology, correction or retraction similar prominence to the original statement.
An applicant for a declaratory order does not have to prove that a statement is
false. Anyone who applies for a declaratory order cannot bring any other
proceedings arising out of the statement to which the application relates.
A court which makes a declaratory order may also make a correction order
and an order prohibiting publication of the statement, but it cannot
award damages. The court can give directions about the delivery of pleadings
and the time and manner of trial of any issues in order to come to a speedy
decision.
A defendant may give the plaintiff written notice that he is paying an amount
into court in satisfaction of the action, without admission of liability. The
plaintiff may accept the payment in full settlement of the action.
Where a court finds that a statement was defamatory and the defendant has no
defence, the plaintiff may ask for a correction order. The order specifies when
the correction must be published, and the form, content, extent and manner of
publication. Unless the plaintiff requests otherwise, the correction must be
published in a way that will ensure that it is communicated to all (or
substantially all) of the people to whom the defamatory statement was
published. A plaintiff who intends to apply for a correction order must inform
the defendant in writing at least seven days before the trial, and must inform
the court at the trial. An application may be made at any time the court
directs.
The parties in a defamation action may make submissions to the court about
damages. In the High Court, the judge must give the jury directions about
damages, taking into account:
(a) the nature and gravity of the original allegation,
(b) the means of publication, including their possible lasting nature,
(c) the extent of circulation of the defamatory statement,
(d) the offer of any apology, correction or retraction,
(e) any offer to make amends by the defendant, whether or not that was pleaded
as a defence,
(f) the importance of the plaintiff’s reputation in the eyes of some or all
recipients of the defamatory statement,
(g) the extent to which the plaintiff contributed to or acquiesced in the
publication,
(h) the plaintiff’s reputation,
(i) the extent to which the defence of truth is
successfully pleaded if the defendant proves the truth of only part of the
statement,
(j) the extent to which the defendant has agreed to the plaintiff’s request to
publish a reasonable statement of explanation or contradiction if the defence
of qualified privilege is pleaded, and
(k) any order prohibiting publication, or any correction order that may be
made.
Where an apparently innocent statement is defamatory due to facts known to only
some recipients, it will be treated as having been published to those people
only.
With the court’s permission, the defendant may give evidence of any matter
which has a bearing on the reputation of the plaintiff, provided that it
relates to matters connected with the defamatory statement. The defendant may
also point out if the plaintiff has been awarded damages for substantially the
same allegations in another action.
The court may award special damages for any financial loss suffered by
the plaintiff as a result of the injury to his reputation. Where a defendant is
liable to pay damages and the conduct of his defence aggravated the injury to
the plaintiff’s reputation, the court may order the payment of aggravated
damages. Where it is proved that the defendant intended to publish the
defamatory statement to someone else knowing that it would be understood to
refer to the plaintiff, and knew that the statement was untrue (or was reckless
as to whether it was true or not), the court may also award punitive damages.
The plaintiff may ask the judge to prohibit further publication of a defamatory
statement where the defendant has no defence that is reasonably likely to
succeed. The judge cannot prohibit journalists from reporting his order, as
long as the reports do not include the statement to which the order relates.
A plaintiff may be awarded summary relief if the judge is satisfied that a
statement is defamatory, and the defendant has no defence that is reasonably
likely to succeed. A defendant can ask a judge to dismiss an action if he is
satisfied that the statement is not reasonably capable of having a defamatory
meaning.
The 2009 act also abolishes the common law offences of defamatory libel,
seditious libel and obscene libel.
Blasphemy
Anyone who publishes or utters blasphemous matter shall be guilty of an offence
and liable to a fine of up to €25,000. Blasphemous matter is material that is
“grossly abusive or insulting” about beliefs held sacred by any religion, and
which causes “outrage among a substantial number of the adherents of that
religion”, where the defendant intends to cause such outrage.
It is a defence to prove that a reasonable person would find “genuine literary,
artistic, political, scientific, or academic value in the matter to which the
offence relates”.
“Religion” does not include an organisation whose principal object is making a
profit, or an organisation that employs “oppressive psychological manipulation”
of its followers, or to gain new followers.
The court may issue a warrant to gardai to enter any
premises (including a home), by force if necessary, at a “reasonable” time,
where gardai have reasonable grounds for believing
that copies of a blasphemous statement may be found. The gardai
may search the premises and seize and remove all copies of the statement found,
and may seize all copies of the statement in anyone’s possession.
Survival of action
Formerly, if a plaintiff died, the action died with him. But under the 2009
act, if a plaintiff dies, the defamation action survives and special damages
may be sought, though damages recoverable for the benefit of his estate may not
include general, punitive or aggravated damages.
An agreement to indemnify any person against civil liability for defamation in
respect of the publication of any statement shall be lawful unless at the time
of the publication that person knows that the statement is defamatory, and does
not reasonably believe that there is a defence to any action brought upon it
that would succeed.
Jurisdiction
Section 41 extends the jurisdiction of the Circuit Court in defamation actions
from €38,000 to €50,000.
Where a person has been convicted or acquitted of an offence in the state, the
fact of the conviction or acquittal, and any findings of fact made during the
proceedings for the offence are admissible in a defamation action.
Press Council and Press Ombudsman
The act also set up a Press Council and Press Ombudsman to
- ensure the protection of freedom of expression of the press,
- protect the public interest by ensuring ethical, accurate and truthful reporting by the press,
- maintain minimum ethical and professional standards among the press and
- ensure that people's privacy and dignity is protected.
The ministerial order giving formal statutory recognition to the Press Council
of Ireland as the "Press Council" was signed on
Statements having qualified
privilege
Schedule 1 Part 1 - Statements
privileged without explanation or contradiction
1. A fair and accurate report of any matter to which
the defence of absolute privilege would apply (other than a fair and accurate
report referred to in section 17(2)(i) or (k)).
2. A fair and accurate report of any court-martial proceedings
3. A fair and accurate report of proceedings (other than court
proceedings) presided over by a judge of a court established under the law of
4. A fair and accurate report of any public proceedings of any
legislature of any state other than the
5. A fair and accurate report of proceedings in public of any body duly
appointed, in the State, on the authority of a Minister of the Government, the
Government, the Oireachtas, either House of the Oireachtas or a court established
by law in the State to conduct a public inquiry on a matter of public
importance.
6. A fair and accurate report of proceedings
in public of any body duly appointed, in Northern Ireland, on the authority of
a person or body corresponding to a person or body referred to in paragraph 5
to conduct a public inquiry on a matter of public importance.
7. A fair and accurate report of any proceedings in public of any body—
(a) that is part of any legislature of any state other than the Republic of
Ireland, or (b) duly appointed in a state other than the State, on the
authority of a person or body corresponding to a person or body referred to in
paragraph 5, to conduct a public inquiry on a matter of public importance.
8. A fair and accurate report of any proceedings in public of an
international organisation of which the State or Government is a member or the
proceedings of which are of interest to the State.
9. A fair and accurate report of any proceedings in public of any
international conference to which the Government sends a representative or
observer or at which governments of states (other than the State) are
represented.
10. A fair and accurate copy or extract from any register kept in
pursuance of any law which is open to inspection by the public or of any other
document which is required by law to be open to inspection by the public.
11. A fair and accurate report, copy or summary of any notice or
advertisement published by or on the authority of any court established by law
in the State or under the law of a Member State of the European Union, or any
judge or officer of such a court.
12. A fair and accurate report or copy or summary of any notice or
other document issued for the information of the public by or on behalf of any
Department of State for which a Minister of the Government is responsible,
local authority or the Garda Commissioner, or by or
on behalf of a corresponding department, authority or officer in a Member State
of the European Union.
13. A fair and accurate report or copy or summary of any notice or
document issued by or on the authority of a committee appointed by either House
of the Oireachtas or jointly by both Houses of the Oireachtas.
14. A determination of the Press Ombudsman (from
15. A determination or report of the Press Council (from
16. Any statement published pursuant to, and in accordance with, a
determination of the Press Ombudsman or the Press Council (from
17. Any statement made during the investigation or hearing of a
complaint by the Press Ombudsman in accordance with Schedule 2 (from
18. Any statement made during the hearing of an appeal from a
determination of the Press Ombudsman in accordance with Schedule 2 (from
19. Any statement published by a person in accordance with a
requirement under an Act of the Oireachtas whether or not that person is the
author of the statement.
Schedule 1 Part 2 - Statements privileged subject to explanation or contradiction
1. A fair and accurate report of the proceedings,
findings or decisions of an association, or a committee or governing body of an
association relating to a member of the association or to a person subject to
control by the association.
2. A fair and accurate report of the
proceedings at any lawful public meeting in the state or in the EU held to
discuss any matter of public concern, whether admission is general or
restricted.
3. A fair and accurate report of the
proceedings at a general meeting, whether in the State or in an EU member
state, of any company or association established by or under statute or
incorporated by charter.
4. A fair and accurate report of the
proceedings at any meeting or sitting of any local authority or the Health
Service Executive, and any corresponding body in an EU member state.
5. A fair and accurate report of a press conference convened by or on
behalf of a body to which this part applies or the organisers of a public
meeting within the meaning of paragraph 2 to give an account to the public of
the proceedings or meeting.
6. A fair and accurate report of a report to which the defence of
qualified privilege would apply.
7. A copy or fair and accurate report or
summary of any ruling, direction, report, investigation, statement or notice of
the Irish Takeover Panel.
[See Oireachtas debate reference]
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