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Defamation Law in Ireland

The law of defamation in Ireland is governed by the Constitution, Common Law (body of law derived from judicial decisions) and the Defamation Act 1961. Defamation law regulates the numerous and varied occasions of human activity when individuals have reason to speak unpleasantly of one another. The purpose of the law of defamation is to hold a balance between freedom of speech and the right to reputation. The law starts from the premise that the maker of the disparaging statement is liable.

What is defamatory?

The basic tenet of the law is that any statement, however made, and whether public or private, which is adversely reflective on the name or reputation of another is capable of being defamatory and of being sued upon. Defamation is divided into two forms: libel and slander. Historically, libel was the written form of defamation, while slander was the spoken form. The advent of modern technology has made those definitions somewhat obsolete; a defamatory statement broadcast on radio or television or the Internet would be regarded as libellous, rather than slanderous.

The essentials of the action

An actionable defamatory statement has three ingredients:

1. It must be published - publication in this context means that the statement must be communicated to a third party.
2. It must refer to the complainant and
3. It must be false

Defences to an action for defamation

The law attempts to fulfil the aim of protecting reputation by allowing an action to be brought against the publisher of a defamatory statement. There are, however, a number of defences, which a defendant can raise in response to an action in defamation. In this way, every citizen's right to free expression is vindicated under Irish law. The main defences are listed below:

• Justification: truth is always a complete defence to an allegation of defamation. The defence of justification will succeed if the gist of the statement is true, even though certain details may not be accurate;
• Privilege: the law recognises that on some occasions an individual's right to free expression should not be inhibited. Where a potentially defamatory statement is made on such occasion, the maker of a statement will be granted immunity from an action in defamation. There are two forms of privilege in Irish law: absolute privilege and qualified privilege.
• Publish interest: the statement must be made on a matter of public interest;
• Fair comment: in order to plead fair comment, the publisher must establish that the comment was made in relation to a matter of public interest, that what was said was comment and not a statement of fact, and the that the comment was fair, in other words, it was honest;
• Apology: the law of defamation does not recognise defence based on apology or offer of apology.

Juries and Damages in Defamation Cases

The only method by which the Irish Courts can vindicate the good name of a person who has been defamed is by awarding damages (a sum of money paid in compensation for loss or injury). Neither the court, nor juries, can order a defendant to apologise, to offer a right to reply or, indeed, to admit that they were wrong. The majority of the defamation cases are heard by a jury in the High Court. The jury determines both liability and quantum.

Further, at present, they decide the level of the award with only very limited guidance from the trial judge who cannot, for example, suggest financial parameters for any award or draw comparisons with personal injury damages. In effect, the trial judge is limited to telling the jury to be fair to both sides in light of the evidence before them. There is the widespread view that Irish juries tend to favour plaintiffs. However, a number of decisions in recent years, starting perhaps with Beverly Cooper-Flynn's failed action against RTE, challenges this view.

The Press Council of Ireland

In 2003, the Legal Advisory Group on Defamation (the "Group") - established by the Minister for Justice - recommended in its report that the defamation laws be reformed and a statutory press council created.

On January 1, 2008 the Press Council of Ireland and the Office of the Press Ombudsman was established; everybody in Ireland now has access to an independent press complaints mechanism that is quick, fair and free. The objectives of the Press Council and the Press Ombudsman are:

• to provide the public with an independent forum for resolving complaints about the press;
• to resolve all complaints quickly, fairly and free of charge;
• to maintain the highest standards of Irish journalism and journalistic ethics;
• to defend the freedom of the press and the freedom of the public to be informed.

Recent Developments: The Defamation Bill 2006

The purpose of the Bill is to update the law of defamation to replace the existing statute from 1961 with more modern provisions, taking into account recent decisions in Ireland and in the European Court. The new provisions introduced in the Bill will give plaintiffs a better sense of their rights under the law.

For those interested in obtaining speedy redress when they have been defamed, new forms of remedy will, in future, be available to them. The new legislation will also provide greater clarity for publishers and will facilitate responsible publishers in avoiding defamatory statements as well as providing guidance as to the limits of the various defences which are open to them.

Under the new legislation, the publication of an apology will no longer be an admission of liability. In relation to the issue of damages in defamation actions, the Group outlined in its Report in March 2003 that, while juries should remain in defamation trials to assess whether defamation has occurred, judges alone should decide what levels of damages were to be awarded.

The Group felt that dividing the functions of judge and jury "could place judges in a difficult position since they would not be privy to the seriousness with which the jury viewed the defamatory matter" and that juries should continue to assess damages.

If you believe that you may have a legal claim relating to defamation law, please contact Malcomson Law by calling 01 8744422 or by filling out an Online Enquiry Form. A solicitor who specialises in this area will contact you to advise you of your legal rights and entitlements.

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