Publish at your peril

Defamation Law in Ireland 

A key element in establishing that a statement made is defamatory is publication. Enshrined in the Defamation Act 2009 (the “Act”) defamation is a tort (a civil wrong) which has replaced the previous torts of libel and slander. Defamation consists of a publication “by any means, of a defamatory statement concerning a person to one or more than one person (other than the first-mentioned person)…”

A defamatory statement is “a statement that tends to injure a person’s reputation in the eyes of reasonable members of society”.

A “statement” can be made orally or in writing, contain visual images, sounds and any other methods of signifying a meaning, it can be broadcast on the radio or television or published on the internet and it can be by electronic communication as well.

As online forums, social networks and various other social platforms have now replaced the old school conversation and pen and paper, the diversity and variety of guises in which defamatory statements are made is every increasing and so too the numbers of actions.

When should I bring my claim?

Sooner rather than later. Time is of the essence where defamation is concerned. Your personal and professional reputation may be at stake. If you intend to bring proceedings, a claim should be brought within one year from the date of publication.

Where can I bring my claim?

Claims can be brought in either the Circuit Court or the High Court.

Defences

1. Truth
   Where the statement made is not defamatory in nature by virtue of the fact it is true.
2. Absolute Privilege
   An example of this would be Parliamentary Privilege where statements are made in the Houses of the Oireactas.
3. Qualified Privilege
   Where a person making the statement can show that the statement was made in the public interest and they had a legal, moral and social duty to do so. However, the defence can fail in circumstances where it is shown that the person making the statement acted with malice.
4. Honest Opinion
   It shall be a defence if it can be shown that the reason the statement was made was due to an opinion being honestly held.
5. Consent to Publish
   Where it can be shown that the person was aware of the statement being made and it can be shown that they consented to its publication.
6. Fair and Reasonable Publication on a matter of Public Interest
   Where a statement is made in good faith and in the public interest and the manner and extent of the publication did not beyond what was reasonably sufficient and attempts were made to verify the authenticity of the publication.
7. Innocent Publication
   Where the person who published the statement was not the author but had taken reasonable care in relation to its publication and had no reason to believe that the publication would give rise to a defamation action.

Offer to Make Amends

An offer to make amends is expressly provided for in the Act and takes many different forms:-

• Making a suitable correction of the statement and suitable apology;
• Publishing the correction and apology;
• Payment of compensation, damages and costs.

In circumstances where an offer to make amends is made, no defamation action shall be brought unless the courts considers that it is just and proper to do so. It shall be a defence to a defamation action if a person is able to prove that they made such an offer to make amends.

Remedies

Where no offer is forthcoming and proceedings are commenced typical orders made by the court are as follows:-

• Declaratory order that the statement made is false;
• Order to cease making further defamatory statements;
• Correction order in relation to the defamatory statements made;
• Order to pay compensation, damages and costs;
• In circumstances where the defamatory statements has yet to be made but is about to be published, injunctive relief in the form of interim, interlocutory and permanents orders.

An Apology

An apology has a powerful effect in defamation actions and is often what aggrieved parties seek most leaving them with a sense of justice after having suffered reputational damage affecting them both personally and often professionally.

From the defendants perspective, an apology, if made, does not constitute an admission of liability in a defamation action and is not taken into account in determining liability. However, if made, a defendant may rely on it to mitigate damages awarded against them.

In October 2014, Justin Timberlake and Jessica Biel received an apology following an article published in Heat Magazine entitled “Justin Timberlake gets flirty with another woman, it’s not his wife!” as well as another headline reading “The flirty photos that rocked Justin and Jessica’s marriage” which statements were completely without foundation.

Who we have acted for

1. A corporate client and its directors against whom defamatory statements were made in online forums;
2. Individuals against whom defamatory statements were made orally in public relating to allegations of theft;
3. Professional bodies and clients against whom defamatory statements have been made.

For further information contact Elaine McGrath emcgrath@reddycharlton.ie