The tort, or civil wrong, of defamation is concerned with protecting an individual’s (or indeed, corporate entity’s) reputation from unjust attacks. The right to a good name is constitutionally guaranteed and, as such, the State must protect and vindicate this right.
There are many ways in which an individual can be defamed. Traditionally, unjust attacks on reputation in written form where known as libel, while slander described defamatory remarks made in spoken or other transient form. That distinction has since been abolished and both categories now go under the umbrella of defamation.
The right of an individual to his/her good name and reputation is jealously guarded but so too is the constitutional right to freedom of expression.
When these two rights come into conflict, defamation litigation arises. This most commonly occurs when media publications print stories that have a detrimental effect on an individual’s reputation. However, not all material – however offensive it may be to the party concerned – will be considered defamatory by the courts
The issue of costs is hugely relevant in relation to defamation. In recent years, unsuccessfully defended defamation actions have results in exorbitant awards of damages to libelled parties.
The highest award ever made by an Irish court in a defamation case was €10 million in November 2010 to businessman Donal Kinsella. Prior to the Kinsella case, the largest libel award was €1.9 million to PR consultant 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.
However, under the 2009 Act, the jurisdiction of the Circuit Court for defamation matters was increased to €50,000, which in theory should ensure more matters are instigated in the Circuit Court, thus reducing the potential legal costs of claims.
In addition, the 2009 Act allows a judge sitting with a jury in a defamation action to give directions to that jury in relation to ‘the matter of damages.’
- In order to take an action for defamation, there must have been publication to a third party. There can be no damage to reputation if the public is not aware of the defamatory statement. However, publication to just one other person is sufficient provided it was intentional and reasonably foreseeable that publication to the third party would occur.
- Secondly, the words must be capable of having defamatory effect. Section 2 of the Defamation Act 2009 defines a defamatory statement as ‘a statement that tends to injure a person’s reputation in the eyes of reasonable members of society.’ When establishing if a statement is defamatory or not, words will be given their ordinary, natural meaning. However, the courts will also have regard to innuendo, whereby words which are not on their face critical of the individual may constitute defamation by implying or insinuating something about him or her.
- Finally, the alleged injured party must prove that they have been identified or are capable of being identified by the material complained of. According to section 3(6) of the Defamation Act 2009, ‘a defamatory statement concerns a person if it could be reasonably be understood as referring to him or her.’ It must be noted that an individual need not actually be named in order to prove identification. All that is required is that they are capable of being identified by the details given. In addition, member of a class/group may take an action in defamation provided that they are not too great in number and that, by virtue of the circumstances in which the statement is published, it could reasonably be understood to refer, in particular, to the member concerned.
Because freedom of expression is a fundamental right in any democracy, there are a total of nine ways in which an action for defamation can be defended.
Truth is always a complete defence to an allegation of defamation. That is, if it can be demonstrated that the statement is true, then the alleged injured party cannot bring an action for defamation. It must be noted that ‘a presumption of falsity exists’ whereby the court will presume that the statements complained of are false. It is up to the other side to prove the veracity of the statement.
In certain circumstances the law will grant immunity from an action for defamation to the maker of a statement where public policy dictates that the recipient’s right to know prevails over the individual’s right to a good name. Thus, no action for defamation can arise from a statement made, for example, in either House of the Oireactas by a member of either House of the Oireachtas or any statement made by a judge or other person performing a judicial function. For a full list of the categories covered by absolute privilege see Section 17 of the 2009 Defamation Act.
This defence is particularly relevant to the media and may be pleaded as a defence in circumstances where the law recognises that a person may have a duty to speak to others who have a reciprocal interest in receiving the information. However, it must be noted that malice destroys this privilege.
The defence of honest opinion will be upheld in an action for defamation if it can be proven that the statement consisted of an opinion that was honestly held. The courts will distinguish between statements of fact and opinion when this defence is raised.
Again this defence is particularly relevant to the media and will apply when it can be proven that the statement was made in good faith on a subject of public interest for the benefit of the public. The statement must be in all circumstances fair and reasonable.
A person who publishes a defamatory statement may make an offer of amends, which must be in writing. They may chose to publish a correction or an apology or make a payment to the injured party.
An apology may be issued as a part-defence, in that it can go towards mitigation of damages.
No action for defamation can arise out of a statement that the complainant consented to the publication of.
This defence is particularly relevant to publishers as repetition of a defamatory statement counts as a separate act of defamation. A person who is not the author of the statement at issue, who took reasonable care in relation to its publication and had no reason to believe that he/she caused or contributed to the defamatory publication, will not be guilty of defamation.
Defamation is a highly nuanced area of law. If you feel that you have been defamed it is advisable to contact a knowledgeable solicitor straight away as you have just one year from the date of publication to take a claim.