Defamation and the laws that govern this particular tort is essentially a balancing act between a person’s ability to express themselves and the right for a person not to have their reputation defamed or defaced by another.
This ‘balancing act’ that the courts of Ireland exercise when dealing with cases of defamation centre around two rights that are propounded in our own Constitution. In Article 40.6.1, “the state guarantees liberty for the exercise of the following right, subject to public order and morality: i) The right of the citizens to express freely their convictions and opinions…” Permitting a person to express their opinions freely, the courts however recognise the importance of a person’s reputation and how illusive comments or statements can destroy such.
To counter-balance this right of freedom of expression, the courts are mindful of Article 40.3.2 of our Constitution which states 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 … good name … of every citizen.” Although these rights can be utilised in our own courts of law, they are rarely employed and indeed in some cases of defamation, the courts have declined to give them much weight.
A more effective vehicle of defending one’s rights regarding a case of defamation are the laws that are laid down in the relevant body of legislation that govern this area of law and the numerous cases that stem from the Common Law. Originally governed by the Defamation Act 1961, which itself made adjustments to the common law that governed this area of law, the statutory vehicle that now presides over this specific tort is the Defamation Act 2009. Under this new Act, the terms of “libel” and “slander” have been abolished and have been collaborated under the one heading of “defamation.” Quoting directly from the 2009 Act itself it defines defamation as the “publication, by any means, of a defamatory statement concerning a person to one or more than one person (other than the first-mentioned person), and “defamation” shall be construed accordingly.”
The new Act has not made any changes to the essential requirements that are needed to establish a case of defamation. Firstly, there must be a publication of the defamatory statement which may take the form of writing, spoken words, visual images, sounds or gestures that are broadcast to the world at large by either television or radio or transmitted via the internet, recognition of an evolving society. Secondly, the defamatory statement must be capable of being pinned on a particular person or corporate body and lastly, the statement must have the effect of destroying the reputation of a person or corporate body.
Like all torts or wrongs committed against a person, you have a specific amount of time in which to bring your case. The rules governing the amount of time a potential litigant has before it is deemed too late to institute proceedings are governed by an Act known as the Statute of Limitations 1957. Regarding a case of defamation, the most amount of time a person has in which they may bring a case is one year with the possibility, at the discretion of the court that is, of extending this time period to two years so time is of the essence if one decides to pursue justice via the courts.
If you are faced with a Defamation law-suit, there are defences to the action which are contained in the 2009 Act itself. The following is a list of the possible defences:
i) Truth: One may avoid liability if one can show that the defamatory statement in question is true “in all material respects”.
ii) Absolute Privilege: This refers to utterances made in the Houses of the Oireachtas or people involved in judicial proceedings such as a judge, juror, witness or a legal representation.
iii) Qualified Privilege: This relates 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. By way of example, if an employee writes to his employer making allegations of dishonesty against another employee but these allegation prove to be false but made bona fide (‘in good faith’), such communications will not be considered defamatory. If however, an element of malice is present, the defence will be unsuccessful.
iv) Honest Opinion: For a person to successfully utilise this defence, they must display that they believed in the truth of the opinion, that the opinion was founded on allegations of fact and the opinion concerned a matter of public interest.
v) Offer to make Amends: A defence that epitomises morality, it allows a person accused of making a defamatory statement an opportunity to make amends for the possible damage caused before proceedings in a court of law are instituted. The necessary requirements for such a defence include an apology, a correction and damages in favour of the defamed person.
vi) Apology: Not a complete defence so to speak, it can be used by the courts as a mitigating factor that they may take into consideration when handing down judgement. It is important to note that the making of an apology does not constitute an express or implied admission of liability. This is an important change introduced by the new Act.
vii) Consent: deemed a good defence against a defamation action.
viii) Fair and Reasonable Publication: For this defence to become active, the accused must show that the statement was published in good faith; if dealing or discussing a public interest issue, the discussion was for the benefit of the public; there was an air of reasonableness regarding the manner in which the statement was published and finally, it was fair and reasonable to publish the statement.
ix) Innocent publication: the relevant indicia for the invocation of this defence involve the accused not actually being the author or publisher of the statement; reasonable care was exercised regarding the publication of the defamatory statement and lastly that the accused had no reason to believe that the publication of such would lead to a cause of action in defamation.
A final point to highlight is the re-introduction of the offence of blasphemy. A person who “publishes or utters blasphemous matter” and found guilty of an offence shall be liable upon conviction on indictment to a fine not exceeding €25,000. The difficulty with this re-introduction is that the Act fails to lay down a defining test by which a court will hand down its judgement i.e. whether the test is objective or subjective. It remains to be seen what test the courts will employ and how they will deal with cases of this nature so it’s a case of watch this space!
Just recently, the UK Government has announced plans to introduce laws which will see websites legally obliged to provide victims of defamatory remarks posted on their sites with the name(s) of the person(s) who published them. This will allow persons who have suffered reputational damage as a cause of the defamatory remarks a greater degree of justice but will also provide the websites in question with a greater degree of protection, permitting them to escape liability. If such measures are introduced, it will be interesting to see if the Irish legislature implements similar procedures.