The Defamation Act, 2009 abolishes the Defamation Act, 1961 in its entirety. It provides for the abolition of the separate torts of libel and slander – to be replaced by unified “tort of defamation” in respect of which publication, by any means, of a defamatory statement to a third party shall be actionable. [s. 5] The Act, in its totality, removes different rules which applied formerly to the tort or defamation and slander. Same limitation period for bringing of an action for tort of defamation will apply (one year from publication – 2 years if circumstances indicate that justice requires this and then only with consent of court [s.37] ) and all torts of defamation shall be actionable without proof of special damage.
The Estate of a Plaintiff who has died may continue the action in the deceased’s Plaintiff’s name [explicit in s.38 and implicit in s.7 (12)]. Special damages only may be recovered by Estate of deceased Plaintiff . (Special damages are damages for which are specifically quantifiable, e.g. by reference to receipts, invoices, costings.)
An apology will not amount to an admission of liability. Furthermore, the fact that an apology was made is a factor which a defendant may argue in their defence in relation to the damage caused by the publication of a defamatory statement. [s.22]
The Act will clarify that a defence of consent shall be available to a publisher where the publisher proves that the plaintiff consented to the publication complained of. [s.23] Note that a later section also provides that consent to publication cannot be implied by the refusal of a person to make a comment or response to a question posed by a journalist prior to publication of a defamatory statement [s.24 (3)].
The Act introduced the defence of “fair and reasonable publication” – publication must be made in good faith and for the purposes of discussion of a subject of public importance the discussion of which was for the public benefit and if, taking all the circumstances into account, it was fair and reasonable to publish the statement.
The section (s.24) lists a series of considerations which the court shall take into account. There are 7 factors listed which the court is obliged to take into account along with any other matters the court considers relevant. [s.24]
(a) the extent to which the statement concerned refers to the performance by the person of his or her public functions;
(b) the seriousness of any allegations made in the statement;
(c) the context and content (including the language used) of the statement;
(d) the extent to which the statement drew a distinction between suspicions, allegations and facts;
(e) the extent to which there were exceptional circumstances that necessitated the publication of the statement on the date of publication;
(f) in the case of a statement published in a periodical, the extent to which the publisher of the periodical –
(i) adhered to the code of standards of the Press Council or to standards equivalent to those specified in that code of standards, and
(ii) abided by decisions of the Press Ombudsman and determinations of the Press Council;
(g) the extent to which the plaintiff’s version of events was represented in the publication concerned and, if not so represented, the extent to which a reasonable attempt was made by the publisher to obtain and publish a response from that person;
(h) any other means taken to verify the assertions and allegations concerning the plaintiff in the statement.
This means that the current position whereby a broadcaster is liable for the making of a defamatory statement by a contributor – even a rogue contributor who deliberately exploits or tricks a radio station into broadcasting a defamatory statement – remains unchanged despite (a) the recommendation of the Mohan Report, and (b) the fact that a similar legislative provision in the U.K. The Defamation Act, 1996 includes a specific exemption for broadcasters of live talk programmes who have taken reasonable care which has proved a very important ground of defence for broadcasters.
The omission of an innocent publication defence for broadcasters from the 2006 Act is could arguably inhibit or limit the availability of genuinely live broadcast talk programmes in Ireland in the future.
The defence of absolute privilege is applied to a wider range of occasions than heretofore under the Act. This includes statements made in the European Parliament by MEPs, statements made before Dail or Seanad Committees, statements made in Tribunals of Inquiry or at Coroners’ Inquests, statements made in the course of or in reports by any inquiry conducted on the authority of a Government Minister, the Government, the Dail or the Seanad [s.15]
The Act re-states the parameters of the defence of what was previously known as statutory qualified privilege. An understanding of the full implications and application of this defence requires a careful reading of section 17. What is significant is that the level of protection previously afforded to publication of e.g. local authority meetings has been extended to:-
- reports of proceedings of general meetings of limited companies;
- reports of public meetings held for a lawful purpose for discussion of a matter of public interest;
- HSE meetings;
- press conferences of bodies to which the relevant part of the Schedule applies as well as public meetings (of the nature referred to above).
Provision is made for an aggrieved party to apply to Court for a Declaratory Order that a statement was defamatory. This is a “speedy remedy” procedure and allows for a defamation case to be heard by a judge sitting alone who will make the Declaration if s/he sees fit. No damages can be awarded. [s.26]
A Lodgement into court may be made without admission of liability [s.27]. This alters the current position which applies exclusively to defamation actions whereby making a lodgement into court prior to the hearing of a defamation action amounts to an admission of liability.
A Correction Order may be applied for by the Plaintiff in the course of the trial of a defamation action. The Plaintiff must notify the Defendant at least 7 days before start of the trial that s/he intends doing this. This means that the judge will be entitled to make an order directing the publisher who is found to have no defence to a defamation action, to publish a correction in a manner and on a date to be specified in the order. [s.28].
A judge shall give the jury directions in relation to damages where a publisher is held liable for defamation. Judges have had this entitlement for a number of years in the U.K. and the more restricted entitlement for judges in Irish courts to give such directions has been litigated as far as the European Court of Human Rights (Independent Newspapers v Ireland, 2005 arising from Irish case of de Rossa v Independent Newspapers). [s.29]
An offer of an apology is one of the factors that the Act states the Court shall take into account in making an award of damages. Note that submissions in relation to damages may be made by both sides. [s.29]
A pre-publication prohibition order (i.e. injunction) may be applied for and made by the High Court where, in the opinion of Court, a statement is defamatory and the Defendant has no defence that is reasonably likely to succeed. [s.32]
Provision is made for preliminary hearings in defamation actions before a judge sitting alone (i.e. no jury – known as “summary” hearing). A judge hearing such a preliminary action can make an order either finding in favour of the plaintiff without a jury hearing where judge believes there is no reasonable defence to the action, or in favour of the defendant where the judge believes that the statement complained of is not reasonably capable of being found to be defamatory. [S. 33]
Similar provision is made in respect of preliminary hearings on whether the statement complained of was reasonably capable of bearing a defamatory meaning. If a finding is made by the judge sitting alone that the statement was not reasonably capable of bearing a defamatory meaning, s/he may make an order dismissing the action. [s.13]
Common law criminal offences of criminal libel, seditious libel and obscene libel are to be abolished. [s.34].
Limitation of actions – 1 year after publication, or up to 2 years after publication with leave of the court where the interests of justice require that the period of one year should be extended. [s.37]
Jurisdiction of Circuit Court raised from €38,000 maximum damages award to €50,000 in defamation actions [s.40].
Provision is made whereby an individual’s criminal record may be brought in evidence in a defamation action; similarly if someone has been acquitted of a criminal charge, this fact may be brought in evidence in a defamation action. [s.42]