CPD CONFERENCE GALWAY
Paper by John F. Kiely, B.L. Thursday 5th April 2012
DEFAMATION ACT 2009 AND RELATED TOPICS
Prior to the enactment of the Defamation Act 2009, the law was that as constituted by the common law of defamation as it developed over the centuries and one piece of legislation namely the Defamation Act 1961.
1. Background
1.1The precursor to the Defamation Act 2009 was a debate centred on the issue as to whether public individuals have private lives and can keep them private and whether freedom of the press allowed public discourse and opinion on such matters.
1.2There was considerable pressure brought about by the press lobby who had been pressing for years for reform.
1.3The Law Reform Commission published a very detailed consultation paper on the civil law of defamation in 1991.
1.4However, and not unusually, in the protection of their self interest, the very people who could change the laws were the same people that were being targeted by the new special investigative type reporting, not just regarding their public lives but significantly also in relation to their private lives.
1.5Therefore, and again not unsurprisingly, the Defamation Act 2009 makes little difference to the previous position and is far from an Act reforming the law of defamation but merely makes some changes to the procedural aspects of the law and introduces heretofore new range of available remedies that will be gone into in some detail later in this paper.
1.6The first important point is that the Act came into operation on the 1st January 2010 and it has no retrospective application[1] and it abolishes the Defamation Act 1961 in its entirety.[2]
1.7From a practitioners point of view a significant and practical development in the Act is that the limitation period is reduced from three years (for slander) and six years (for libel) to one year for the tort of defamation (or, in exceptional cases where the interests of justice so require, two years).[3]
1.8It is important to note that the date of the accrual of the cause of action is the date on which the defamatory statement is first published so as far as the Plaintiff’s advisors are concerned it is essential to ensure that proceedings are issued within one year of first publication.
2. Key Points of Reform
2.1 The following points are of significance and in the main are
new:
(i)The tort of defamation survives the death of either the plaintiff or the defendant.[4]
(ii)The multiple publication rule has been abolished in favour of a single publication where only one cause of action is occasioned by repetitious publication of the same defamatory statement.[5]
(iii)There is no longer a separate cause of action in slander and libel. There is instead one single cause of action known as the tort of defamation which consists of the publication of a defamatory statement concerning a person which tends to injure that person’s reputation in the eyes of reasonable members of society.[6]
(iv)There is no need to prove special damages.[7]
(v)The 2009 Act applies to body corporates in the same way as it is applies to a natural person.[8]
(vi)The new Act allows for lodgments in both the High Court and in the Circuit Court without any admission of liability.[9]
(vii)Each party in a defamation action whose pleadings contain assertions or allegations of fact must swear an Affidavit of Verification.[10] This is a new obligation on both parties to verify assertions and allegations of fact. Placing such an onus on the plaintiff to ensure the accuracy of such facts as are pleaded in the Statement of Claim was an important addition to this area of law and brings this particular tort in line with the changes brought about by the Civil Liability and Courts Act 2004.
(viii)The Act also provides that parties in a jury trial may make submissions and the Judge can give directions in the matter of damages[11] thereby reversing a prior Supreme Court ruling in DeRossa v Independent Newspapers plc[12]and O’Brien v TheMirror Group Newspapers.[13]
(ix)The Act further provides that the Circuit Court jurisdiction in defamation actions is to be raised to €50,000.00.[14] This is of greater significance than one might first have thought. Presuming for the moment that the driving force behind a defamation action is concerned with vindicating a person’s good name and reputation as it is with quantum of damages. Accordingly there is now a forum, i.e. the Circuit Court, which can grant vindication of a finding in favour of a Plaintiff and a material sum in damages. Obviously there is considerable difference between High Court and Circuit Court costs and clients now do not have to expose themselves necessarily to the risks of High Court costs.
3. Key Elements of Defences under the new Act
3.1Section 15(1) of the 2009 Act abolishes all pre-existing common law defences to defamation. Thus the defences contained in Part 3 of the 2009 Act are all of the options open to a defence lawyer in one piece of legislation as set out hereunder.
3.2Truth
3.2.1The old common law defence of justification has been abolished and has been reincarnated in the form of a defence to be known as “thedefence of truth”.[15] The falsity of an alleged defamatory statement has always been presumed in Irish law and this has not changed in the 2009 Act. Therefore the onus of proof still remains on the defendant to establish the truth of a statement.
3.2.2The defence of truth contains in Section 16(2) the much criticised feature of Section 22 of the 1961 Act in providing that the defence of truth shall not fail by reason only of the truth of every allegation not being proved if the unproved words do not materially impact upon the plaintiff’s reputation in light of the truth of the remainder of the statement. Accordingly factual inaccuracies relating to minor or non material matters of a publication such as dates, times and places peripheral to the general allegation do not bar the defence of truth.
3.2.3Furthermore an important feature of this Section is that truth is a complete defence to the action for defamation and does not depend in any way upon the defendant’s state of mind. Absence of belief in the truth of a statement is irrelevant to the applicability of the defence.
3.3Absolute Privilege
3.3.1The defence of absolute privilege previously existed both at common law and in statute.
3.3.2Absolute privilege is now firmly placed on a comprehensive statutory footing by Section 17 of the 2009 Act.
3.3.3Section 17(2) extends the old common law position and extensively lists specific examples of statements that will attract absolute privilege under the 2009 Act.
3.3.4The specific examples listed in Section 17(2) are largely reflective of categories that were thought to be protected by absolute privilege at common law.
3.3.5The categories for which Section 17(2) provides embrace statements made in:
- The executive and government context
- The legislative and parliamentary context
- The judicial and quasi judicial context
3.3.6The list is not exhaustive and the enumeration of such specific categories some 23 in number is a significant new development which should not be underestimated from a practical perspective in that it makes certain that uninhibited coverage of any or all types of proceedings listed in Section 17(2) is in the public interest.
3.3.7Furthermore doubts previously expressed as to, e.g. the entitlement of Courts of local and limited jurisdiction such as coroners’ courts to the defence of absolute privilege have been dispelled in one stroke.
3.3.8The most important criteria for the successful invocation of absolute privilege at common law was that the statement be adequately connected to the proceedings which form the basis for the privilege.
3.3.9Finally, absolute privilege remains a complete defence to defamation actions and is undefeated by malice.
3.4 Qualified Privilege
3.4.1 The common law position in relation to the defence of
qualified privilege is restated and placed on a statutory footing.[16]
3.4.2 A defendant to a defamation action is not liable where he or
she proves:
- The statement was published to a person or persons who had a duty to receive it.
- The defendant believed upon reasonable grounds that such person had such a duty.
- The defendant had a corresponding duty to communicate the information to such persons.
3.4.3 There really is no great difference between the common law
position and Section 18 of the 2009 Act, save that it placed qualified privilege on a statutory footing. However it did changes the existing juris prudence somewhat i.e.
3.4.4 Previously in Hynes-O’Sullivan v O’Driscoll,[17] the
defendant’s solicitor made a complaint about a psychiatrist to the Irish Medical Organisation. The complaint should in fact have been made to the Medical Council because it was that body that had jurisdiction over issues of professional misconduct.
3.4.5The Supreme Court determined that the Defendant’s mere honest belief that the party addressed had an interest or a duty in receiving the publication in question did not render the occasion privilege. Given the changes in the law it will now suffice if the defendant believes on reasonable grounds that the person to whom he is giving the information has a legitimate interest to receive it.
3.5 Honest Opinion
3.5.1 Section 20 of the 2009 Act creates the defence of honest
opinion. In truth there is little difference between this new defence of honest opinion and the old defence of fair comment.
3.5.2Honest opinion is available as a defence to defamation where each of the following three criteria are established by the defendant.
- The defendant believed in the truth of the statement.
- (i) The opinion was based on an allegation of fact specified in the statement containing the opinion.
(ii) The opinion was based on an allegation of fact to which the defence of absolute privilege or qualified privilege would apply.
- The opinion related to matters of public interest.
3.5.3Where the opinion is based on allegations of fact a defendant cannot rely on honest opinion unless:
- He proves the truth of all the allegations.
- Where some of the allegations are proved and some are not the defendant’s opinion is honestly held in light of the allegations of fact which have been proved.
3.5.4Malice does not vitiate the new defence of honest opinion, whereas malice vitiated the old defence of fair comment.
3.6Fair and reasonable publication of a matter of public
interest
3.6.1 This defence is designed to facilitate free discussion on
topics of public importance and enshrines in statute a defence similar to the judgment in the House of Lords in the seminal case of Reynolds v Times Newspapers.[18]
3.6.2 Prior to the enactment of the 2009 Act Reynolds had already
become part of Irish law through a number of decisions of the Superior Courts. In Hunter v Duckworth[19] O’Caoimh J. considered that “the flexible approach adopted in Reynolds v Times Newspapers is the best way in which the Courts, in the absence of legislative reform in this area, can protect the constitutional rights of parties coming before the Court where the rights, such as those that issue, in these proceedings are at issue.”
3.6.3 In Leech v Independent Newspapers(Ireland) Limited[20]
Charlton, J. again adopted the Reynolds approach as developed in Jameel v Wall Street Journal[21] holding that a public interest defence can arise where the subject matter of the publication considered as a whole was a matter of public interest and that the decision as to whether a newspaper behaved fairly and reasonably in gathering and publishing the information would take into account some of the tests as set out by Lord Nichols in the Reynolds case. Charlton J. held that a publisher seeking to invoke the public interest defence had to demonstrate:
(i)That the subject matter of the publication was a matter of public interest.
(ii)That he acted responsibly and in accordance with proper standards of journalism.
Further in order to rely on the new defence of fair and reasonable publication a defendant must establish that the statement was published:
(i)In good faith.
(ii)In the course of a discussion of which was for the public benefit
(iii)In a manner and to an extent which did not exceed what was reasonably sufficient in all of the circumstances.
3.6.4The requirements in Section 26(1)(c) that a defendant must show that “in all of the circumstances of the case, it was fair and reasonable to publish the statement” is then fleshed out in Section 26(2). It lists ten factors which, in so far as they are pertinent, shall be taken into account by the Court in assessing whether it was fair and reasonable to publish the statement.
The ten factors are as follows:
- The extent to which the statement concerned refers to the performance by the person of his or her public functions.
- The seriousness of any allegation made in the statement.
- The context and content of the statement.
- The extent to which the statement drew a distinction between suspicions, allegations and facts.
- The extent to which these were exceptional circumstances that necessitated the publication of the statement on the date of the publication.
- In the case of a statement published in a periodical by a person who at the time of the publication was a member of the press council the extent to which the person adhered to the codes of standard of the Press Council and abided by the determinations of the Press Ombudsman and determinations of the Press Council.
- In the case of a statement published in a periodical by a person who at the time of the publication was not a member of the Press Council the extent to which the publisher of the periodical adhered to the standards equivalent to the standards specified in paragraph f.
- The extent to which the plaintiff’s version of events was represented in the publication concerned and given the same or similar prominence as was given to the statement concerned.
- If the plaintiff’s version of events was not so represented, the extent to which a reasonable attempt was made by the published to obtain and publish a response from that person.
- The attempts made and the means used by the defendant to verify the assertions and allegations concerning the plaintiff in the statement.
3.6.5There is no doubt that the long list of factors in Section 26(2) creates a requirement for a defendant publisher to act in a very fair manner towards the plaintiff.
3.6.6The new defence of fair and reasonable publication is not confined to journalists. At common law it was always the occasion of the publication which was privileged rather than the publisher.
3.7 Offer to Make Amends
3.7.1 Section 22 provides that a defendant who has published an
allegedly defamatory statement may make an offer of amends.
3.7.2 Unlike under the 1961 Act where only an innocent publisher
or a publisher of unintentional defamation could offer to make amends, now any defendant may do so.
3.7.3 The offer of amends must be in writing, must state that it is
an offer to make amends for the purposes of the Section and must state whether it is an offer in respect of the entire of the statement or a qualified offer.
3.7.4 The defendant must offer to do three things:
1. Make a suitable correction of the statement concerned and a sufficient apology to the person to whom the statement refers or is alleged to refer.
2. To publish that correction and apology in such manner as is reasonable and practical in the circumstances.
3. To pay to the person such sum in compensation or damages (if any) and such costs, as may be agreed by them or as may be determined to be payable.
3.7.5An offer of amends must be made before the delivery of a
defence.
3.7.6 Section 23(1) provides for measures to be taken if an offer of
amends is accepted.
3.7.7 Section 23(2) provides that an unaccepted offer to make
amends is a defence to a defamation action in itself.
3.7.8 Where there is no agreement by the parties, the amount of
damages or compensation as well as the extent of the adequacy or the apology will fall to be decided by the Court. However the main purpose of the statutory regime here is to provide an exit route for journalists who have made a mistake and who are willing to put up their hands and make amends.
3.7.9 From a plaintiff’s point of view, Section 22 is not a choice
because it arises whenever the defendant chooses to commence the process. A number of important tactical considerations arise.
3.7.10 Firstly, acceptance of the offer is not a loss. It means that
a plaintiff will obtain damages together with a suitable
correction and apology.
3.7.11 Secondly, because the rejection of a valid offer of amends
by a plaintiff may provide a defendant with a complete
defence, a plaintiff has to be very careful about rejecting
the offer.
3.7.12 Thirdly, it will in many cases be appropriate to draw a
defendant out on the issue of whether the offer is or is not
a qualified offer.
3.8 Apology
3.8.1 Section 24 restates the law that a defendant may give
evidence in mitigation of damage that he made and published an apology.
3.8.2 A new requirement not contained in the Defamation Act 1961
is that the apology be published or that the offer to publish an apology be:-
(i)In such a manner as ensured that the apology was given the same or similar prominence as was given to the (libellous) statement.
(ii)That it was published as soon as practicable after the plaintiff makes a complaint to the defendant.
3.8.3 Section 24(4) provides that evidence of an apology made by
or on behalf of a person in respect of a statement to which the action relates “is not admissible in any civil proceedings as evidence of liability of the defendant”.
3.8.4Previously, such an apology was routinely employed by plaintiffs as evidence of liability and defamation proceedings. The practical effect of this Section is of little consequence at least in a jury setting because once a jury is informed of the apology the jury will see this as an acknowledgement of wrongdoing (though never so stated).
3.9 Consent
3.9.1Section 25 of the 2009 Act puts, on a statutory footing, that
consent by the plaintiff to publication is a defence to an action for defamation in respect of that publication.
3.10 Innocent Publication
3.10.1 Section 27 of the 2009 Act changes the common law
position quite dramatically.
3.10.2 It creates a defence of innocent publication for the
defendant who is not the author or editor or publisher of the statement and who both:
- Took reasonable care in relation to its publication.
- Neither knew nor had reason to believe that what he did caused or contributed to the defamatory publication.
3.10.3 Innocent publishers now have a defence provided that they
did not act negligently i.e. provided they took reasonable care in how they operated. In determining whether reasonable care was taken the Court will consider: