According to the Courts Service annual report, there were 287 new defamation cases in the High Court and Circuit Court in 2017, compared with 206 in 2016. 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, radio station or social media site. Indeed, former Attorney General Máire Whelan called for a reform of defamation law to protect court reporters who made innocent errors.
Speaking on the retirement of the former president of the High Court, Nicholas Kearns, she said: “To avoid a chilling impact on the level and quality of court reporting that the people of this country expect and enjoy, we should at least debate and consider enshrining in our laws a provision that no report of court proceedings should be actionable in defamation in the absence of proof of malice, and further, that to institute such proceedings, the proposed plaintiff should first have to seek leave of the court and demonstrate on affidavit the mala fides alleged.”
Balance of rights
Journalists and bloggers 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 Ireland is not absolute. 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 Convention on Human Rights, 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 case of Kennedy v Hearne  ILRM 52, the Irish High Court specifically acknowledged the role played by the law of defamation in vindicating a citizen’s right to his good name. Nowadays that right may be undermined by social media, but the courts have indicated that they are prepared to order social media organisations to disclose the names of people who might be guilty of defamation. (Damien Tansey v John Gill, Ann Vogelaar and Dotster Inc  IEHC 42 and McKeogh v John Doe and Ors  IEHC 95) It’s now possible to defame someone on social media. A mother and her son obtained €40,000 in damages from the HSE in May 2015 after the child’s foster parents posted defamatory comments about the boy’s birth mother on Facebook. However, the Act protects ISPs from actions for defamation where they are innocent of publication of the defamatory material (Muwema v Facebook Ireland Ltd  IEHC 519 – but see this report in the Irish Independent).
The law of defamation in Ireland is governed by European law, the Constitution, common law and the Defamation Act 2009. That Act repeals the Defamation Act 1961, which was in force until the first day of 2010. The Defamation Act 2009 now governs all claims of defamation arising since the commencement of the new legislation.
The traditional definition of defamation was publication of a false statement which subjected a person to hatred, ridicule or contempt. That rather archaic definition (still being used as late as 2016 in one case) 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. (But a person’s reputation cannot be damaged, for example, on the basis that he has been the subject of an ex parte order of any kind – per Hardiman J in Goold v Collins & Ors  IESC 38)
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. The 2009 Act abolished the separate torts of libel and slander and replaced them with the ‘tort of defamation’. However, you might get away with not knowing this if you are a lay litigant. In JO’N v SMcD & ors  IEHC 135, a lay litigant sought damages for “slander, libel and defamation of character”. Birmingham J said that he regarded the references to slander and libel as being outdated references to the tort of defamation.
An actionable defamatory statement has three ingredients:
Normally, defamation cases are heard in open court because of the constitutional imperative that justice must be done in public (Irish Times v Ireland  1IR 359), but a court hearing may exceptionally be held in private (Mooney v Commissioner of An Garda Síochána & Ors  IEHC 155 and Sunday Newspapers Ltd & ors v Gilchrist and Rogers  IESC 18). As O’Donnell J said in the Supreme Court: “Litigation is a robust business. The presence of the public is not just unavoidable, but is necessary and welcome.”
A defamatory statement is actionable only if it is published. In the 1840 case of Ahern v Maguire 1 Armstrong & Macartney (Irish) 39, 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.) 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. If the publishing medium has a website, it is good practice to consider whether to remove the offending statement temporarily or permanently at an early stage.
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 Raidió Telefís Éireann  2IR 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 (Reynolds v Malocco, trading as Patrick  IEHC 175). Kelly J 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 in a “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 the later case of Philpott v Irish Examiner Ltd  IEHC 62, Barrett J refused an application to remove from the Irish Examiner website an article which was claimed to be “defamatory, skewed, not fair and accurate, malicious and unprivileged”. He said a defence of absolute privilege was reasonably likely to succeed.
It may be a defence if someone cannot be recognised or found on the internet, or there is no claim that a page has been accessed in Ireland. In Coleman v MGN Ltd  IESC 20, the claim was of internet publication by an archival subscription website, UKPressOnline. MGN claimed in the High Court that the Irish courts had no jurisdiction, following the European Court of Justice decisions in eDate Advertising GmbH v X (C 509/09) and Martinez v Société MGN Ltd (C 161/10). MGN said the Court should refuse to hear the case under Council Regulation EC No 44/2001, SI 52 of 2002 or the Rules of Court because the company was domiciled in England.
In the High Court, Charleton J said: “With internet publications nowadays, a recording from Saudi Arabia might end up in Ireland on the news.” He cited Ewins v Carlton Television  2 ILRM 223, in which Barr J held that, where there was publication in several jurisdictions, the plaintiff had a choice in which jurisdiction to bring the proceedings. But in the Supreme Court, Denham CJ said there was no evidence before the Court of internet publication or of access from Ireland. It was agreed that Coleman could not be recognised by a thumbnail miniature on UKPressOnline and, as his name was not mentioned in the articles, he could not be identified by a search on that basis. The Court allowed the appeal.
But 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. (Coleman v MGN Ltd  IESC 20)
To be actionable, the statement must be unarguably defamatory. (Mercury Engineering v McCool Controls and Engineering Ltd  IEHC 425 and Cogley v RTÉ  IEHC 180) Words may be merely a vulgar reprimand. For example, a woman who was called “a f*cking skankhole” by a Dublin Bus driver failed to prove she had been defamed. The President of the Circuit Court said any half-intelligent Dubliner would not conclude that the words meant the woman was of low morals or low character. Similarly, two bus drivers accused of “racist abuse” and putting a postman off a bus because he demanded a receipt were cleared of defamation.
Under s14(1)(a) of the 2009 Act, a person (or media outlet) accused of publishing a defamatory remark may seek a court order that the publication was not reasonably capable of the imputations claimed by the plaintiff. Not all applications are successful. In Travers v Sunday Newspapers Ltd 2012 [IEHC] 185, Hedigan J said: “Written words must be construed in the context in which they appear. The hypothetical reasonable man that is referred to in Jeynes v News Magazines Ltd  EW CA Civ 130, whilst not overly suspicious, can read between the lines and determine what is actually meant by the article.” But a mere reference to a person being under suspicion does not amount to an inference of guilt. (Lowry v Smyth unreported, High Court, 10 February 2012 and Griffin v Sunday Newspapers  IEHC 331)
The ‘single meaning rule’ essentially ensures “that the same set of words contained in a published piece has a fixed, settled meaning, thereby providing certainty for the parties and mitigating the risk of inconsistent jury verdicts arising from confusion as to the meaning of the words in question”. (Speedie v Sunday Newspapers Ltd & Ors  IECA 15 and Yeo v Times Newspapers Ltd  EWHC 2853)
The jury has a “unique” role in deciding questions of meaning, as was decided in Magee v MGN Ltd  IEHC 87. While the judge lays down the limits of the range of the possible defamatory meanings of which the words are capable, it is for the jury to determine the actual meaning of the words within that range. As the judge said in Quigley v Creation Ltd  IR 269: “In defamation, as in perhaps no other form of civil proceedings, the position of the jury is so uniquely important that, while it is for the judge to determine whether the words complained of are capable of a defamatory meaning, the judge should not withhold the matter from the jury unless he is satisfied that it would be wholly unreasonable to attribute a libellous meaning to the words complained of.” A defendant is entitled to a jury trial “as of right” – Lennon v Health Service Executive  IECA 92. The question of damage to reputation is also “a matter of opinion”, as distinct from actual fact, and therefore a matter for the jury. (Barrett v Independent Newspapers Ltd  IR 13)
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. But the defendant is entitled to know the “broad outline” of the case being made against him. (Quinn Insurance Ltd & Ors v Tribune Newspapers plc & Ors  IEHC 229 and Mahon v Celbridge Spinning Company Ltd  IR 1) No matter how old the allegation or how obscure or how intrusive of a person’s privacy, a complainant is not entitled to bring a 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 a media organisation out of business.
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. The High Court decided in Philpott v Irish Examiner Ltd  IEHC 62 that a “fair and accurate” report of proceedings could include a summary and still attract absolute privilege, provided it was generally fair. The Law Reform Commission questioned in an issues paper on privilege in 2018 whether the law in Philpott was clear, and whether absolute privilege should be available to bloggers, as well as to “bona fide members of the press” who were answerable to the Press Council or Broadcasting Authority of Ireland. Dáil deputies or members of the Seanad may say what they wish about a person within the confines of the chamber. No matter how scurrilous the allegation or how improper the motive for making it, they may not be sued for that statement – although this privilege is not just limited to defamation. (Attorney General v Hamilton (No 2)  3 IR 227 and Kerins v McGuinness & ors  IEHC 34) Similarly in a court of law, a judge may not be sued for anything said, and barristers may make whatever allegations they please while on their feet, without fear of an action for defamation – or for an action in negligence or for negligent misrepresentation (Jeffery v Minister for Justice and Equality & ors  IEHC 99). Lawyers who make irrelevant, insulting or 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. In McNamara v Dunnes Stores (Parkway) Ltd  IEHC 172, Dunnes appealed a €20,000 Circuit Court defamation judgment. In the High Court, Murphy J said: “The initial injury to the reputation of the plaintiff has, in the Court’s view, been considerably aggravated by the conduct of the defence which rather cynically gave evidence of justification, while masquerading as a defence of qualified privilege.” She awarded the plaintiff €7,500 damages for defamation and €2,500 aggravated damages for the way the defence was conducted.
The Defamation Act 2009 also provides qualified privilege for reports of the proceedings of certain foreign organisations (such as the Court of Justice of the European Union or CJEU), 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 Ltd 72 ILTR 238, 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.
High damages for defamation pushed Ireland’s press freedom ranking down to 16th in the 2018 World Press Freedom Index, from 14th in 2017. 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. In December 2017, the board of the World Association of Newspapers and News Publishers in New York expressed dismay that defamation awards in Ireland were frequently up to ten times higher than comparable awards in neighbouring jurisdictions. For example, the Sunday World newspaper had to pay compensatory, aggravated and punitive damages totalling €310,000 to a former GAA footballer whom it “grossly defamed”. (Nolan v Sunday Newspapers Ltd  IEHC 367) 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. In February 2019, former justice minister Patrick Cooney’s High Court defamation action against The Irish Times was settled on the steps of the court. The newspaper apologised for suggesting Cooney approved of alleged Garda brutality, and he received “substantial” damages and costs. However, where a case is not settled, security for costs may be refused (Stein v Scallan and anor; Gorrell v Scallan and anor  IEHC 683)
But even where an action is settled on the steps of the court (McDonagh v Sunday Newspapers Ltd  IESC 59; Irish Times apology), damages or legal costs can still be very high indeed. 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 €1.872 million in damages won by Mrs Monica Leech over a 2004 series of articles in the Evening Herald which falsely suggested that she had had an affair with a government minister. But Leech v Independent Newspapers (Ireland) Ltd  IESC 79 predated the 2009 Act and, on appeal, the Supreme Court substituted damages of €1.25 million. (The European Court of Human Rights found in June 2017 that the level of damages for the “sustained and unusually salacious campaign” had had a “chilling effect” on the newspaper’s right to freedom of speech – application number 28199/15.)
The national broadcaster, RTE, reportedly paid Fr Kevin Reynolds €800,000 for libelling him in the Prime Time Investigates programme ‘Mission to Prey’ in May 2011. RTE’s former 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. However, in Kehoe v Raidió Teilifís Éireann  IEHC 340, Barton J (applying Hickey v McGowan and Anor  IESC 6) ruled that, where a plaintiff permitted his claim against a concurrent wrongdoer to become statute‐barred, a defendant could plead a form of contributory negligence to reduce an award of damages.
All High Court defamation actions are tried by a jury. Damages may be assessed by a judge sitting alone, without a jury (Christie v TV3 Television Network Ltd  IEHC 694) but the common law right to have a jury trial in defamation cases was expressly preserved by s 48 of the Supreme Court of Judicature Act (Ireland) 1877. (Lennon v Health Service Executive  IECA 92). The new Court of Appeal can uphold damages granted by a High Court jury. For example, the appeal court upheld an €85,000 High Court award to football commentator David Speedie against the Sunday World, which had suggested that gardaí suspected him of being involved in criminal activity. (Speedie v Sunday Newspapers Ltd & Ors  IECA 15.) Occasionally a jury’s verdict may be struck down as “perverse” (as in the Court of Appeal case of McDonagh v Sunday Newspapers Ltd  IECA 225), but a publisher can’t rely on such a stroke of good fortune. A defendant who loses a defamation action is also 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.
If a publisher pleads justification (that an alleged fact is substantially true) and this turns out not to be the case (McDonagh v Sunday Newspapers Ltd  IESC 59), 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 Campbell v Irish Press, concerning a review of a snooker exhibition which claimed “the table told lies”, the jury awarded no damages, but the Supreme Court substituted an award of £1. In the action taken by the former Irish Taoiseach (prime minister) Albert Reynolds against the Sunday Times, it was just one penny. And in the April 2001 case of Irish parliamentarian Beverley Cooper-Flynn against state broadcaster RTE, the jury found that RTE had not proved its case, but other evidence showed that the plaintiff’s character had not been damaged. She was awarded no damages and ordered to pay a legal bill estimated at £2 million.
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 ombudsman. If the ombudsman finds in favour of the complainant, 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 and remedies. 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 - but check the original!)
Under the 1961 Act, the limitation period for defamation actions was six years (Ewins v Independent Newspapers (Ireland) Ltd  1IR 583, in which Keane CJ said a defamation plaintiff was “under a particular onus to institute his proceedings instantly and without delay” or with “extra diligence” – Desmond v MGN Ltd  1IR 737 and Desmond v Times Newspapers Ltd  IEHC 271.) But this was reduced to one year from the date of first publication. (Millerick v The Minister for Finance  IECA 206 and Nóirín O’Sullivan v Irish Examiner [November 2018]) The period can be extended to up to two years by court order, but the court will not extend the period (except in the interests of justice) where the prejudice suffered by the plaintiff would significantly outweigh the prejudice to the defendant. In Watson v Campos  IEHC 18, Barrett J said that, strictly speaking, once a plaintiff was outside the standard one-year limitation period, a direction ought to be sought for the extension of the limitation period before bringing a defamation action, rather than a direction being sought after the action had already started. 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 was no longer available. In Watson v Campos, the plaintiff “dallied” without good reason. Barrett J refused to extend the one-year period, commenting that “journalists and editors must not...be condemned to a Janus-like existence in which they must ever look backwards” (and see Leech v Independent Newspapers (Ireland) Ltd  IECA 8 and here).
A statement may be made orally or in writing, broadcast on radio or television or published on the internet or social media, 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:
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 €50,000 fine 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 limited 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 s 13 that, on appeal, the appeal 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.
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 (s 16(2) – see the ‘single-meaning rule’.) In the case of Nolan v Laurence Lounge t/a Grace’s Pub  IEHC 352, the defendant pleaded the alternative defences of truth and qualified privilege. McGrath J said: “Any privilege that may have applied, in my view, is negatived by unreasonable and excessive publication.” He found, on appeal to the High Court, that the plaintiff had been defamed in a Dublin pub when the barman claimed loudly that the €10 he proffered was fake. The judge upheld the Circuit Court’s €5,000 defamation award.
It is a defence under s 17(2) for the defendant to prove that the statement was made by a judge, or someone performing a judicial function, or was made during proceedings presided over by a judge or someone performing a judicial function, or was made during proceedings involving the exercise of limited judicial functions and powers under Article 37 of the Constitution, as long as the statement is connected with those proceedings. 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 Fitness to Practise Committee of the Medical Council),
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. In McCormack v Olsthoorn  IEHC 431, Hardiman J upheld the right to qualified privilege in the case of a wrongly-suspected shoplifter. He said the defendant “had a legal right to protect his property and in doing so to ‘tax’ an individual whom he suspected of a theft”.
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 do not concern the public and are 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 –
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 –
A person accused of defamation may make an offer of amends. Such an offer must be in writing and state –
However, the Supreme Court has ruled that plaintiffs still have the right to opt for a jury to decide on the amount of damages if the terms are not agreed. (Higgins v The Irish Aviation Authority  IECA 322; White v Sunday Newspapers Ltd  IESC 29) The offer should not be “simply formulaic” and copy the words of the section, without any substance which the plaintiff might consider. (McNamara v Sunday Newspapers Ltd & Anor  IECA 140)
An offer to make amends cannot be made after the defence has been delivered or after a motion for judgment has been issued and served (McNamara v Sunday Newspapers Ltd & Anor  IECA 140). However, an offer may be withdrawn before it is accepted and a new offer made. An ‘offer to make amends’ means an offer –
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 (Ward & anor v The Donegal Times Ltd & anor  IEHC 711), 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 (Christie v TV3 Television Network Ltd  IEHC 694).The court will take into account:
Whether or not a jury should assess damages and costs has still to be decided by the Supreme Court. (Higgins v The Irish Aviation Authority  IESCDET 17.) 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 to do so. 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. An offer to make amends can reduce the amount of damages awarded. In Christie v TV3  IEHC 694, solicitor David Christie was wrongly identified in a voiceover as criminal solicitor Thomas Byrne. Three days later, Christie wrote to TV3 claiming he had been defamed. The TV station apologised on air the following day and offered to pay €1,000 to charity as a gesture of goodwill.
Nevertheless, Christie issued proceedings and TV3 made a formal offer of amends in March 2014. In the High Court on 12 November 2015, O’Malley J said that the “unqualified offer of amends” entitled TV3 to “substantial mitigation of damages”, and she cut the amount from €200,000, which she said the case could have been worth, to €140,000. (The damages were further reduced by the Court of Appeal to €36,000 – Christie v TV3  IECA 128. As Hogan J said, this was simply a case of mistaken identity, and an excessive award of damages would affect the constitutional right of free speech.)
A defendant may give evidence in mitigation of damages that he –
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 –
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 –
But whereas Barr J decided in Meegan v Times Newspapers Ltd  IEHC 696 that a plaintiff was entitled to discovery of a journalist’s notes and other relevant background material, subject to journalistic and legal professional privilege, Hogan J overturned that decision in the Court of Appeal (Meegan v Times Newspapers Ltd t/a The Sunday Times  IECA 327. Similarly, in Boyle v Governor of St Patrick’s Institution and ors  IEHC 410, Barr J said: “The interests of the applicant in asserting journalistic privilege outweigh the interests of the plaintiff in having his sources revealed. Accordingly, I rule that the applicant need not reveal his confidential sources for the article.” Discovery should not be too broad. (Thema International Fund plc v HSBC Institutional Trust Services (Ireland)  IESC 19 and Ryanair Ltd v Goss  IECA 328. Discovery was also refused by the Court of Appeal in O’Brien v Red Flag Consulting Ltd & Ors  IECA 258.)
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 in 2010 said: “Non-members of the Press Council will be required to have in place an equivalent fairness regime or to operate an equivalent and publicised code of standards to avail of that defence.”
The defence of innocent publication may be pleaded where the defendant can prove that –
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 –
A person who claims to be the subject of an alleged defamatory 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 –
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. The parties agree the wording of the correction and apology and, if the defamation appeared in a newspaper, the issue, page and position where the correction and apology is to appear. If the two sides cannot agree on the content of the correction or apology, the court can order publication of a summary of the judgment – Watters v Independent Star Ltd  IECC 1.
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 (although “It is not necessary for the plaintiff to plead the facts on which he relies for a claim of exemplary damages.” O’Brien v Red Flag Consulting Ltd & Ors  IECA 258) 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, whether or not that was pleaded as a defence,
f) the importance of the plaintiff’s reputation in the eyes of 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,
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 as a result of the injury to the plaintiff’s 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. Anyone who deliberately publishes or utters blasphemous matter was formerly guilty of an offence and liable to a fine of up to €25,000. But in October 2018, the Irish people voted overwhelmingly in a referendum to remove blasphemy from the Constitution.
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 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 is lawful unless, at the time of the publication, that person knows that the statement is defamatory, and does not reasonably believe that there could be a successful defence to any action.
Section 41 of the 2009 Act extends the jurisdiction of the Circuit Court in defamation actions from €38,000 to €50,000. The Courts and Civil Law (Miscellaneous Provisions) Act 2013 further increased the jurisdiction of the Circuit Court to €75,000.
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.
A litigant must prove that the courts have jurisdiction. In October 2016, the Court of Appeal upheld a High Court decision that the Irish courts did not have jurisdiction in a Ryanair defamation case against an Australian pilot for comments he allegedly made on an internet website forum based in California. (Ryanair Ltd v Fleming  IEHC 875) Hogan J held that there was no evidence that the post had been accessed or downloaded in Ireland. Normally, he said, defendants should be sued wherever they are domiciled.
The Act also set up a Press Council and Press Ombudsman to
Schedule 1 Part 1 – Statements privileged without explanation or contradiction
(The Act was to be reviewed in accordance with s 5. The Minister for Justice said the review would be completed “during the first quarter of 2019”. It wasn’t! To mark World Press Freedom Day 2019,
the representative body for Irish news publishers is calling for the review to be done urgently.)
© Kieron Wood 1998–2019