Defamation

Question 1

What are the two balancing constitutional rights and their corresponding articles?

Answer 1

Article 40.3.2° provides for a person’s right to a good name.

Article 40.6.1°i guarantees the right of citizens “to express freely their convictions and opinions”. This right is subject to “public order and morality”.

Question 2

Tort of Defamation

Answer 2

The tort of defamation aims to protect a person’s right to a good name and reputation, while also balancing the right to freedom of expression.

At law everyone is presumed to have a good name. Once the plaintiff can prove that a statement is defamatory, it is for the defendant to prove the truth of the statement or to raise a defence to a claim of defamation.

The plaintiff must prove the statement is question is defamatory. Once this is established however, it is presumed to be false and the defendant must raise the defence of truth/justification and prove the truth of the allegation in question (or raise another defence to the charge of defamation).

Question 3

Defamation Act 2009

Answer 3

The Defamation Act, 2009 updates the law of defamation and reflects much of the developments in this area of law in other common law countries as well as adopting many of the recommendations of the Law Reform Commission and the Advisory Group.

Question 4

Current stance on Libel and Slander

Answer 4

Section 6(1) of the Defamation Act 2009 now provides that the common law torts of libel and slander shall cease to be so described and shall instead “be collectively described” as the tort of defamation. This provision essentially abolishes the distinction between libel and slander without formally abolishing the common law torts.

Question 5

Actionable How?

Answer 5

Per Se

Section 6(5) of the Defamation Act 2009 now provides that “the tort of defamation is actionable without proof of special damage”. This means that a person can maintain an action for defamation without having to prove he suffered any financial loss.

Question 6

Define Defamation

Answer 6

[T]he wrongful publication of a false statement about a person, which tends to lower that person in the eyes of right-thinking members of society or tends to hold that person up to hatred, ridicule or contempt, or causes that person to be shunned or avoided by right thinking members of society.1

Question 7

How does the Defamation Act Define Defamation?

Answer 7

Section 6(2) of the Defamation Act 2009 provides:

The tort of defamation consists of the publication, by any means, of a defamatory statement concerning a person to one or more than one person (other than the first-mentioned person), and “defamation” shall be construed accordingly.

Question 8

Define Publication

Answer 8

Publication means communication by the defendant to a third party.

Communication to the plaintiff, the subject of the defamatory statement, is not sufficient (section 6(4) of Defamation Act 2009).

Question 9

Evans v. Carlyle [2008] IEHC 143,

Answer 9

he defendant wrote graffiti on the gable wall of his house which contained a statement defamatory of the plaintiffs. This was accepted to amount to publication as the gable wall was within public view.

Question 10

Paul v. Holt (1935) ILTR 157

Answer 10

If the communication is by private letter to the plaintiff the defendant will not be liable; however, the defendant will be assumed to know that people often open and read letters not addressed to them

a letter was addressed to “Mr Paul”. The letter was opened by the plaintiff’s brother who also lived at the same address. There was held to be publication because there was evidence that the defendant knew there was another Mr Paul living at the same address and therefore was negligent in addressing the letter to the person by his surname only.

Question 11

Foreseeability and Publication

Answer 11

The Common Law is replicated by the provisions of section 6(4) of the Defamation Act 2009 hich provides there is no publication if the defamatory statement is published to a third party in circumstances where

(a) it is not intended to publish that statement to a third party and
(b) it was not reasonably foreseeable that the publication of the statement to the subject of the statement (the plaintiff) would result in the statement being published to a third party.

Question 12

Spouses and Defamation

Answer 12

At Common Law (and not affected by the act), for some purposes, a husband and wife are treated as a single unit. There is no publication if the defendant communicates a statement to his own spouse. There is publication if the defendant communicates a statement to the plaintiff’s spouse.

Question 13

Berry v. Irish Times [1973] IR 368

Answer 13

Persons who distribute or disseminate or repeat a defamatory statement can be liable for defamation. Therefore, a printers or newsagent could be sued for defamation for reproducing and disseminating a defamatory statement.

Irish Times was sued for printing a photograph of a placard containing an allegedly defamatory statement. Newsagents and book sellers may, however, avail of the defence of “innocent publication”

Question 14

Bunt v. Tilley [2007] 1 WLR 1243

Answer 14

Internet Search Providers
that internet service providers which performed no more than a passive role in facilitating postings on the internet could not be deemed to be a publisher.

Question 15

Metropolitan International Schools Ltd v. Designtechnica Corpn [2011] 1 WLR

Answer 15

it was held that search results on Google did not amount to publication, as the process was automated, the search inquiry was framed by the person using the service, and the results were displayed without any human input. Therefore,

“the mental element traditionally involved in responsibility for publication at common law was absent”.

Question 16

Tamiz v. Google Inc [2012] EWHC (QB) 449

Answer 16

plaintiff was suing the defendant in respect of defamatory comments posted by anonymous bloggers. The plaintiff had complained to the defendant, which claimed it was unable to do anything about the material. An analogy was drawn in argument with the owner of “a wall on which various people had chosen to inscribe graffiti”.

Question 17

Quigley v. Creation Limited [1971] IR 269

Answer 17

opinions may vary reasonably within very wide limits”. The defamatory statement was also one which tended to lower a person in the eyes of a certain section or class of society.

he test is whether it will lower him in the eyes of the average right-thinking man. If it will, then it is defamatory if untrue. It follows naturally that in an action in this country the standard would be that of the average right-thinking person in this community. The law recognises the right of the plaintiff to have the estimation in which he stands in the opinion of the right-minded people in this community unaffected by false statements to his discredit.

The test was how the average right-thinking person actually reacts, rather than how the reasonable person ought to react.

In a community which places a high value on female chastity, to say untruthfully of a woman that she was the victim of a rape may well lower her in the eyes of the community by creating an undesirable interest in her or by leaving her exposed to the risk of being shunned or avoided— however irrational it may appear that a person who has been the victim of a criminal assault should as a result, through no fault of her own, be lowered in the eyes of ordinary reasonable persons in the community.

Question 18

Cassidy v. Daily Mirror Newspapers Limited [1929] KB 331, (UK Case)

Answer 18

The defendant will be liable even if he did not intend to cause offence.

“[l]iability for libel does not depend on the intention of the defamer; but on the fact of defamation”.

Published article about man getting married but used photo of wife’s husband. Made her friends think she was lying about being married.

Question 19

Hickey v. Sunday Newspapers Ltd [2010] IEHC 349

Answer 19

Twink left “that” message on her former husband’s answering machine and referred to the plaintiff as a “whore” and this was repeated by the defendant in its publication. However, Kearns P held it was clear from the context of the article that the term “whore” was used as a form of vulgar abuse and was not intended to be understood in its literal sense.

Vulgar abuse is not defamatory.

Question 20

Sinclair v. Gogarty [1937] IR 377

Answer 20

it was held that to say an antique dealer “sought new mistresses more highly than old masters” was defamatory as it imputed sexual misconduct on the part of the plaintiff and this would have affected his standing in society.

Question 21

de Rossa v. Independent Newspapers plc [1999] 4 IR 43

Answer 21

it was found that a newspaper article suggesting the plaintiff politician was involved in or tolerated serious crime, supported anti-Semitism and violent communist oppression was defamatory.

Question 22

Berry v. Irish Times [1973] IR 368

Answer 22

If the defamatory statement consists of an allegation that the person was acting to uphold the law, it is less likely to be construed as defamatory.

Irish Times published a report of a Sinn Fein picket and a photograph of a placard reading: “Peter Berry – 20th Century Felon Setter – Helped Jail Republicans in England”. The plaintiff was the Secretary in the Department of Justice and claimed the statement was defamatory as it was capable of meaning that he had informed English authorities which helped secure the conviction of two Irish men in England.

It is perhaps surprising that the Supreme Court should be asked to hold, as a matter of law, that it is necessarily defamatory to say of one of the citizens of this country that he assisted in the bringing to justice in another country of a fellow countryman who broke the laws of that country and who was tried and convicted for that offence in the ordinary course of the administration of criminal justice. This Court is bound to uphold the rule of law and its decisions must be conditioned by this duty.

The opinions of the two dissenting judges in that case indicate the often subjective nature of whether a statement will be considered to have defamatory effect:

It appears to me, and I think it would appear to any Irishman of normal experience and intelligence, that the words complained of were clearly a libel. “Felon-setter” and “Helped jail republicans in England” were not words in respect of which one has to have recourse to a dictionary to know what they meant to an Irishman; they were equivalent to calling him a traitor.

Question 23

Reynolds v. Malocco [1999] 2 IR 203

Answer 23

the plaintiff was a company director and involved in running two nightclubs in Dublin. The defendant published a magazine which published an article headed: “Operation Night-cap Causes John Reynolds Sleepless Nights As Cops Raid Club”. The plaintiff claimed the article defamed him as it was alleged, inter alia, that he had been charged by the guards with permitting the sale of drugs in his nightclubs.

It was also argued that a reference in the article to the plaintiff as a “gay bachelor” suggested he was homosexual. The defendant accepted the plaintiff was not homosexual but argued that the term “gay” meant simply a person who was lively and cheerful and fond of pleasure. Kelly J held that argument might have succeeded in the past but was “an absurd proposition to put to the Court in 1998”.

The defendant also argued that to allege someone is homosexual is not to lower the person in the eyes of right thinking members of society. However, Kelly J relied on the case of R v. Bishop (1975) 1 QB 274 as authority for the proposition that merely because homosexual acts were no longer criminal in this jurisdiction did not necessarily mean the allegation could not be defamatory.

Question 24

Reynolds v. Times Newspapers Ltd [1999]

Answer 24

a former Taoiseach, Albert Reynolds, resigned from office and the British edition of the Sunday Times published an article entitled: “Goodbye gombeen man: Why a fib too far proved fatal for the political career of Ireland’s peacemaker and Mr Fixit”. The plaintiff claimed the allegation was that he had deliberately and dishonestly misled the Dáil and this was defamatory.

Question 25

Evans v. Carlyle [2008] IEHC 143

Answer 25

concerned a boundary dispute between two neighbours. The Evanses had recently obtained planning permission to which Mr Carlyle objected. Mr Carlyle wrote graffiti on the gable wall of his house in Howth, which was within public view. The alleged defamatory statement was: “Thomas Evans beauty queen writes bogus reports for dummy planning application”. The plaintiff distributed beauty products and the defendant claimed he wrote “beauty queen” in order to “wind him up”. The plaintiffs succeeded in the Circuit Court in a claim for defamation in respect of the allegation he had made a false application for planning permission.

Question 26

Broome v. Agar (1928) 138 LT 698

Answer 26

An apparently defamatory statement can be rendered neutral by reference to the context in which is it made. It was said if a person said “you thief”, but then qualified this statement by the words: “you stole my heart”, this would not be defamatory.

Question 27

Charleston v. News Group Newspapers Limited [1995] 2 AC

Answer 27

The defendants published material comprising an article with headlines, photographs and captions. The photographs showed the plaintiffs’ faces superimposed on the near-naked bodies of models in pornographic poses. The article, which made it clear that the photographs had been produced without the knowledge or consent of the plaintiffs, castigated the makers of a pornographic computer game. The plaintiffs sued for defamation.

It was held by the House of Lords that a claim for libel could not be founded on a headline or photograph in isolation from the related text. The question whether an article was defamatory had to be answered by reference to the response of the ordinary, reasonable reader to the entire publication; and that the ordinary reader could not, by a reading of the whole article, have gained the impression that the plaintiffs were involved in making pornographic films.

Question 28

Gilchrist v. Sunday Newspapers Ltd. & Ors. [2017] IECA 191

Answer 28

The test to be applied by the court is whether the article, when viewed objectively by the reasonable reader, is capable of giving rise to the pleaded meanings (see Hardiman J. in Travers). … Clarke M.R. in Jeynes v. News Magazines Limited [2008] EWCA Civ 130 helpfully summarised the principles relevant to how the meaning of words should be determined as follows:-

“(1) The governing principle is reasonableness.

(2) The hypothetical reasonable reader is not naïve but he is not unduly suspicious. He can read between the lines. He can read in an implication more readily than a lawyer and may indulge in a certain amount of loose thinking but he must be treated as being a man who is not avid for scandal and someone who does not, and should not, select one bad meaning where other non-defamatory meanings are available.
(3) Over-elaborate analysis is best avoided.
(4) The intention of the publisher is irrelevant.
(5) The article must be read as a whole, and any “bane and antidote” taken together.
(6) The hypothetical reader is taken to be representative of those who would read the publication in question.
(7) In delimiting the range of permissible defamatory meanings, the court should rule out any meaning which, ‘can only emerge as the produce of some strained, or forced, or utterly unreasonable interpretation…’.”

Question 29

Stocker v. Stocker [2019] 2 WLR 1033

Answer 29

UK Supreme Court considered what the words “He tried to strangle me” would convey to the ordinary reasonable reader of a Facebook post. The words had been posted on Facebook by the defendant, the plaintiff’s former wife, during an exchange with the plaintiff’s new partner. The plaintiff argued that the word “strangle” meant that he tried to kill her. The defendant denied that the words imputed an intention to kill but meant rather that he had violently gripped her neck, inhibiting her breathing so as to put her in fear of being killed.

In the High Court, relying on the Oxford English Dictionary definition of the verb “strangle”, the judge found in favour of the plaintiff. This finding was upheld by the Court of Appeal but ultimately overturned by the Supreme Court. Lord Kerr in the Supreme Court warned of the danger of relying on dictionary definitions to provide a guide to the meaning of a defamatory statement. He said (at [25]):

That meaning is to be determined according to how it would be understood by the ordinary reasonable reader. It is not fixed by technical, linguistically precise dictionary definitions, divorced from the context in which the
statement was made.

Question 30

Innuendo

Answer 30

An apparently innocent statement may be defamatory if the plaintiff can show that there is a hidden, secondary, meaning to the words which makes it defamatory.

Question 31

Capital and Counties Bank v. Henty (1882)

Answer 31

One must consider, not what the words are, but what conclusion could reasonably be drawn from it, as a man who issues such a document is answerable not only for the terms of it but also for the conclusion and meaning which persons will reasonably draw from and put upon the document.

Question 32

Types of Innuendo

Answer 32

The secondary meaning can be shown by examining the words themselves (false or popular innuendo)

or by proof of extraneous matters (true or legal innuendo). Publishing a true and accurate story in a misleading manner can also constitute innuendo.

Answer 33

To say that the police are investigating X’s affairs, might imply that X is under suspicion of having committed a crime. This implication might be deduced from the words themselves. No amount of deduction, however, could make the statement that “X entered No. 10” defamatory without additional facts being proved, as for example, that No. 10 is a brothel. These situations are known in law as innuendoes.

This means N0. 10 is synonymous for a brothel, and once the plaintiff brings that fact into play he can argue that it was defamation (that he does not go to brothels and did not go to one).

The former type of innuendo, where the defamatory meaning can be implied from the words themselves, is known as a false innuendo (popular innuendo), whereas the latter, where extrinsic or additional information must be produced, is known as true innuendo (legal innuendo).

She likes sausage.

Question 34

Byrne v. RTE [2006] 2 ILRM 375

Answer 34

Where defamatory meaning only arises because of facts which are known to the recipients there is said to be an innuendo. This has two principal consequences.

First the plaintiff must plead the special meaning he contends the words have and prove that the facts upon which this meaning is based were known to at least one other person to whom the words were published.

Second the meaning resulting from those words may give rise to a cause of action separate from that (if any) arising from the words in their ordinary and natural meaning, because it is an extended meaning not present in the words themselves.

Question 35

Byrne v. RTE

Answer 35

defendant broadcast a documentary on disreputable and fraudulent personal injury claims. In one scene a document with the letterhead of the plaintiffs’ firm of solicitors was shown. The scene was played over an interview which referred to a group of solicitors allegedly responsible for bringing fraudulent claims. The plaintiffs sued for libel and claimed it had been alleged or imputed that the plaintiffs were dishonest solicitors engaged in facilitating fraudulent claims. The plaintiffs claimed a number of persons would have recognised their letterhead. MacMenamin J said that this was a case of false or popular innuendo:

Primarily the latter is the situation here, where there is a publication to the general public at large on matters which by the very context and circumstances of the publication, demonstrate an imputation defamatory in nature, that is, to publish allegedly of the plaintiffs, that they had been guilty of sharp practice or other disreputable or dishonest or incompetent conduct in their profession.

Question 36

An example of false innuendo being relied upon Fullam v. Associated Newspapers Limited [1953-54

Answer 36

where a newspaper article claimed the plaintiff, who was a professional footballer, never used his right foot except for balancing on. The plaintiff claimed there was an innuendo that he was not competent to be picked as an international player. This meaning could be taken from the words of the article themselves.

Question 37

Cassidy v. Daily Mirror Newspapers Limited [1929] KB 331.

Answer 37

The defendant published a photo of the plaintiff’s husband, Mr Cassidy, (also known as Mr Corrigan), with another woman and stated the couple had recently become engaged to be married.

This was false, although the defendant claimed it was an innocent mistake. Mrs Cassidy sued for defamation. She claimed her friends thought she had deceived them and was “masquerading as Cassidy’s wife while cohabiting with him as his mistress”.

Question 38

de Lacey v. Bord na Móna

Answer 38

The defendant published a group photograph of former employees and their spouses on an outing of the Bord na Móna Pensioners’ Association. The photograph carried a caption which wrongly identified the plaintiff (who was a widow) as being the wife of a Mr H Cummins who also appeared in the photograph. Publication took place in Scéal na Móna, an internal Bord na Móna journal, distributed several times a year free of charge to employees and pensioners of Bord na Móna. The plaintiff claimed that the photograph and caption meant and were understood to mean, by way of innuendo, that she was a person of loose morals, engaged in an illicit and immoral sexual liaison with Mr Cummins, or was passing herself off as his wife.

Question 39

Reference to Plaintiff

Answer 39

The statement must refer to the plaintiff. If the statement does not identify the plaintiff directly the plaintiff may still be able to prove that the statement referred to him. Section 6(3) of the Defamation Act 2009 provides that a “defamatory statement concerns a person if it could reasonably be understood as referring to him or her”. The burden is on the plaintiff to prove that the statement referred or was capable of referring to him or her.

Question 40

Sinclair v. Gogarty [1937] IR 377

Answer 40

he plaintiff was not named in the book “As I Walked Down Sackville Street” (described by the plaintiff as “a reservoir of filth and the grosser forms of vulgarity”) by Oliver St J Gogarty. The reference was to “two Jews in Sackville Street”. The plaintiff claimed this was a reference to him and his twin brother, two well-known art dealers in Dublin at the time, even though the business was carried on at Nassau Street and later Grafton Street, not Sackville Street.

Question 41

Bradley v. Independent Star Newspapers Ltd. [2011] IESC 17

Answer 41

Star Sunday newspaper published an article about two brothers “dubbed the ‘Fat Heads’”, who were “leading the underworld’s most dangerous armed gang” and were being investigated by CAB. These persons were not named in the first article published. In a second article published a few months later, the plaintiffs claimed photographs of them were published and they were named and the article also referred to an investigation by CAB. The Supreme Court accepted that the second article referred to the first article. It was held the second article was capable of identifying the plaintiffs as the subjects of the first article.

Question 42

Section 10 of the Defamation Act 2009 reflects the common law and provides:

Answer 42

Where a person publishes a defamatory statement concerning a class of persons, a member of that class shall have a cause of action under this Act against that person if –

(a) by reason of the number of persons who are members of that class, or
(b) by virtue of the circumstances in which the statement is published,

the statement could reasonably be understood to refer, in particular, to the member concerned.

Question 43

Defamation of the Dead

Answer 43

ection 39 of the Defamation Act 2009 provides that a cause of action existing at the time of a person’s death survives for the benefit of his or her estate.

Question 44

What are the defences to Defamation?

Answer 44

1. Truth
2. Absolute Privilege
3. qualified privilege
4. Fair and reasonable publication on matters of public interest
5. Honest opinion
6. Offer of Amends
7. Apology

Question 45

Truth

Answer 45

• only defamatory if untrue
  -governed by section 16(1)
• Section 16(2)
  Where there are two defamtory statemenst but only one proves to be defamatory- you can only claim for damages for the extend that it was defamatory.

Question 46

Alexander v North Eastern Railway Co

Answer 46

Pl argued that allegations that he had to pay a 1 pound fine and three weeks in prison were untrue.

Reality he paid 1 pound and two weeks.

Held not defamation because widely true.