Defamation Of Character
Freedom of Speech – Is there such a thing?
A citizen has a right to protect his or her good name, character and reputation and this right is recognised by the State.
Article 40.6.1.i of the Irish Constitution guarantees:
the right of citizens to express freely their convictions and opinions under Article 40.6.1.i of the Irish Constitution.
However this freedom is restricted. The organs of public opinion such as such as the radio and the press have their right to liberty of expression but they shall not be used to undermine public order, morality or the authority of the State.
Article 40.3.2 of the Constitution guarantees that:
"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."
Article 10 (1) of the European Human Rights Convention 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”.
Again, such restrictions apply 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".
What is Defamation?
Defamation is a statement that injures a person’s reputation or that of a company in the eyes of a reasonable person who may hear or read the statement. There are three ingredients:
- It must be published – that is heard or read by a third party.
- It must relate to a person expressly or by implication
- It must be false.
The law in Ireland was overhauled in the Defamation Act 2009. This act abolished the traditional distinction between ‘libel’ (meaning a written defamation) and ‘slander’(meaning a spoken defamation) and we now have the ‘tort of defamation’ which covers false statements whether spoken, written, broadcast on TV or radio or published on the internet.
A publication of some sort must have taken place before a false statement becomes actionable for damages. A publication may consist of a comment made verbally in public or broadcast on the radio or TV. A letter may be sent from A to B containing gross falsehoods and allegations but because this is not a publication then there is no cause of action by b against a. If the letter was also sent to a third party or if wrongly addressed then it becomes actionable. Usually, it is only necessary to prove that one other person received the letter in order to succeed however a jury will take into account how widespread the publication was when assessing the damage done and the level of compensation to be awarded. Persons who fear they are about to be defamed by an article in a newspaper or magazine may apply for an injunction to restrain the publisher and the courts will sometimes grant this relief. The courts must balance the right of freedom of expression of the publisher with the rights of the individual claiming defamation to have his good character and reputation protected. Sometimes a court will allow the publication to proceed and the injured party will have to proceed with a claim against the publisher for damages. Mr Justice Kelly has described the task of the court as ‘…a jurisdiction of a delicate nature…’
Reference to a person
A person may be defamed without having been specifically named. For example a photograph of a person with a derogatory caption may suffice. Even the use of a picture of a persons car in an article about drunk driving in one publication gave rise to a claim for damages where it was established by the owner of the car that it was identified by readers who knew it to be her car and the reasonable inference drawn by these acquaintances was that she was involved in drunk driving.
Publication of the truth can never be actionable. However an allegation of defamation gives rise to a presumption by the court that the statement is false until proved to be true by the publisher. If the publication is both a lie and maliciously published then the award of damages is likely to be much higher.
Damages for Defamation
A successful injured party in a defamation action has the potential to achieve a high award of compensation for the injury to his or her reputation. A claim could take several days or even weeks to hear in the court and can give rise to enormous legal costs which have to be paid by the loosing party. Both sides have a lot at stake. Neither can predict with any certainty what the outcome of a case will be especially as the decision in in the hands of a jury. A publisher could potentially be put out of business by a high award or an individual could be bankrupted by the costs. The loosed has to pay the legal costs incurred by both sides. For these reasons many defamation actions are settled at an early stage. One of the most publicised settlements in Ireland is reputed to have been made in the claim brought by Fr Kevin Reynolds against RTE for falsely alleging he had raped a young African girl and fathered a child by her. The damages were believed to have been in the region of €800,000.00. Other high profile defamation cases included that brought by Monica Leech who was falsely accused in a newspaper of having an affair with a government minister and who received €1.9m damages and the case of Donal Kinsella who received an award of €10m in a claim against his former employer when it issued a press release falsely alleging that he sleepwalked into a woman’s bedroom while on Africa on company business. On the other hand in a case brought by Albert Rynolds against the Sunday Times the award was one penny and in a case by Beverley Cooper-Flynn against RTE there was no award as the jury decided that while there was a publication there was little or no damage to his characted and reputation.
What does the Press Ombudsman do?
The office of Press Ombudsman was established in 2007. A complaint may be lodged and if successful the Ombudsman may direct the publication of an apology.
What do the Press Council and Press Ombudsman do?
These were established 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.
Taking a claim for Defamation
The process is governed by the Defamation Act 2009. The claim must be filed within one year and there is provision for a court to extend this to two years where a claimant establishes that it would be in the interests of justice to grant the extension and that the publisher will not be unduly prejudiced by the extension of time.
The injured party must prove that the statement was false and referred to him or her expressly or by inference or his profession, calling, trade or business or his property. There is no need to prove actual financial loss except where the action is for slander of title, goods or malicious falsehood.
Either party may appeal the outcome to the Supreme Court which has the power to award a different figure to that of the jury.
An application may be made to a Judge without a jury for a decision on whether a statement is “reasonably capable” of having the suggested imputation, and whether that imputation is reasonably capable of having a defamatory meaning.
What sort of damages may be claimed?
When an injured party succeeds in proving defamation the jury may award damages as compensation for the injury caused. A Judge will guide the jury and advise that the following criteria should be taken 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.
An injured party may recover special damages if actual financial losses can be proved, for example if the claimant lost his job as a result of the publication. Even if the injured party dies, a claim may be pursued by his estate for special damages.
The jury may award aggravated damages if the defendant aggravated the injury to the claimant in the conduct of it’s defence.
Where a publisher who is shown to have intended to publish the defamatory statement recklessly or knowing that the statement was untrue, the jury may award punative damages.
What are the possible Defences to Defamation Claims?
Defence of ‘Truth’
Where a publisher proves that his statement is true in all material respects then a claim will fail.
Defence of ‘Privilege’
A statement made in any of the following circumstances has the protection of absolute privilege which means that a person whose reputation is injured cannot succeed in a claim for damages for defamation. This will be the case even though the persons responsible make malicious or scurrilous allegations.
(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.
Defence of ‘Qualified Privilege’
Where a person has a legal, moral or a social duty to communicate the information and the recipient has a similar duty to receive it the defence of qualified privilege may apply. This defence is not available if the statement is malicious. If a person were to report a suspected crime to the Gardai then even if the suspect is proven to be innocent the statement is not actionable provided it was made in good faith.
The following are the categories of statements having qualified privilege:
- 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)).
- A fair and accurate report of any court-martial proceedings
- A fair and accurate report of proceedings (other than court proceedings) presided over by a judge of a court established under the law of Northern Ireland.
- A fair and accurate report of any public proceedings of any legislature of any state other than the Republic of Ireland.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- A determination of the Press Ombudsman (from April 23, 2010).
- A determination or report of the Press Council (from April 23, 2010).
16. Any statement published pursuant to, and in accordance with, a determination of the Press Ombudsman or the Press Council (from April 23, 2010).
17. Any statement made during the investigation or hearing of a complaint by the Press Ombudsman in accordance with Schedule 2 (from April 23, 2010).
18. Any statement made during the hearing of an appeal from a determination of the Press Ombudsman in accordance with Schedule 2 (from April 23, 2010).
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.
Defence of ‘Consent’
This will apply where the injured party consented to publication of the statement.
Defence of ‘innocent publication’
This defence is available where the defendant in the defamation case can prove:
- he took reasonable care in relation to the publication( the extent of his conduct and his previous record and character are taken into account) and
- he did not know, and had no reason to believe, that his actions would lead to defamation proceedings or
- he was not the author, editor or publisher of the statement (he may have been only the printer or distributor etc).
Defence of ‘Honest Opinion’
Honestly-held opinions are defendable as long as—
- at the time of publication, the defendant believed in the truth of the opinion;
- 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.
Defence of ‘Fair and reasonable publication on a matter of public interest’
This defence is open to a defendant who 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 extent of the publication was reasonably sufficient.
- It was fair and reasonable to publish the statement.
How can the publisher mitigate the potential losses?
A publisher of a defamatory statement may make an offer of amends before a Defence is filed in court to the claim by the injured person. It consists of 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 the terms are agreed and the offer accepted the defamation claim is concluded.
If not accepted and the claim proceeds then the offer may be used by the defendant as its defence (ie the injured party failed to accept an offer to make amends) to the claim however the defendant is precluded from using any other defence.
A defendant will also mitigate damages by offering an apology and publishing it as soon as possible. The apology is not an admission of liability and cannot be used as evidence of guilt on the part of the publisher by the injured party at the hearing of the claim.
Without admitting liability, a publisher of a statement pay into court a sum of money in satisfaction of the claim provided prior notice in writing is given to the claimant who may accept the payment in full settlement of the action.
A publisher can ask a judge to dismiss a claim if the court is satisfied that the statement is not reasonably capable of having a defamatory meaning.
What steps can you take to clear your good name?
An application may be made to the circuit Court for a declaratory order that the statement is defamatory if the publisher has failed to respond to a request to publish an apology, correction or retraction. However the applicant cannot then bring any other proceedings including a claim for damages. The court does not require proof that the statement is false only that it is defamatory and that there is no defence. If successful the applicant can request the court to make a correction order and an order prohibiting publication.
The injured person may apply for an order prohibiting further publication of a defamatory statement. The plaintiff must show that the defendant has no defence that is reasonably likely to succeed. The media may report the order of the court provided that the reports do not include the statement to which the order relates.
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