DEFAMATION LAW IN IRELAND

Augustine O ConnellMSc (Comp Sc) MBCS

Balance of rights Article 40.6.1.i of the Irish Constitution

says that the State guarantees the right of citizens to express freely their convictions and opinions. But the right of freedom of expression in Ireland is not absolute

The right of freedom of speech is also guaranteed by Article 10 (1) of the European Human Rights Convention

as are necessary in a democratic society in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence or for maintaining the authority and impartiality of the judiciary”

What is defamation?

The traditional definition of defamation was publication of a false statement, which subjected a person to hatred, ridicule or contempt. That rather archaic definition has given way to a more modern one: a defamatory statement is one that tends to lower the reputation of the subject in the eyes of right-thinking people

Defamation is divided into two forms: libel and slander. Historically, libel was the written form of defamation, while slander was the spoken form.

A defamatory statement broadcast on radio or television or the Internet would be regarded as libellous, rather than slanderous.

The essential practical difference between libel and slander nowadays is that, in a slander action, the plaintiff (that is the person bringing the action) has to prove that the words caused him actual damage, financial or otherwise.

An actionable defamatory statement has three ingredients:

it must be published, it must refer to the complainant and it must be false.

Publication

A defamatory statement is only actionable if it is published. In the 1840 case of Ahern v Maguire, Chief Baron Brady said that, if a letter “however slanderous, is received only by the person to whom it is addressed, and does not go beyond him, there is no publication of it in law to support an action for libel”. (But a wrongly addressed letter containing defamatory remarks would be actionable if opened by someone other than the subject of the remarks.)

Defence of justification

Only a false statement is actionable. But defamation differs from other torts in that a statement will be presumed to be defamatory until proved otherwise. If a defendant wishes to plead justification as a defence, he has to prove the truth of the statement. It is not up to the complainant to prove that the original statement was false.

Fair comment

In order to plead fair comment, the publisher must be able to show that

• the report was on a matter of public interest

• the statement was a comment, rather than a fact and

• the comment was fair, in that the belief was honestly held

It is a matter for the court to decide whether words are facts or comments.

Privilege

If a statement is privileged, a potential plaintiff has no cause of action. There are two types of privilege: absolute privilege and qualified privilege. In the case of absolute privilege, the intentions of the publisher are irrelevant.

Reasonable care

The Law Reform Commission recommended that a publisher should be allowed to plead in his defence that he had “exercised reasonable care prior to publication in attempting to ascertain the truth of the allegation”. But so far, this proposal is not part of Irish law, and the defence of reasonable care will not be enough to prevent an action for defamation (although it may mitigate damages.)

Damages

Damages in a defamation case may be high enough to put a media organisation out of business - even before considering the matter of legal costs. Because of the high risk of defending a defamation action, the unpredictability of juries and the heavy legal costs of a hearing, the majority of libel cases are settled before coming to court.

DEFAMATION ACT 1961

The law of defamation in Ireland is governed by the Constitution, Common Law and the Defamation Act 1961. That Act repeals a number of previous pieces of legislation - including the Act of Slaunder, passed at the time of King Henry VIII