Defamation Flashcards
Tort of defamation
The publication, by any means, of a defamatory statement concerning a person to one or more than one person. Defamation Act 2009 (the 2009 Act) substantially codified the law in this area.
Defamatory statement
One that tends to injure a person’s reputation in the eyes of reasonable members of society. A statement may be made orally or in writing, broadcast on radio or television or published on the internet, and includes electronic communications and visual images, sounds, gestures and any other method of signifying meaning.
Where a statement is not defamatory
A statement is not considered defamatory
if it is published only to the person to whom it relates. It is also not defamatory if published to another person, as long as: (i) the publisher did not intend to publish the statement to the other person, and (ii) it was not reasonably foreseeable that publication to the first person would result in publication to the other person.
Identification:
A defamatory statement need not necessarily name anyone. It may suggest a person e.g. by their profession, location or connections. Test is whether ordinary sensible person would reasonably be likely to understand the words being referred to the p. Whether words tend to lower the estimation of the p in the eyes of the right-thinking member of society such that they avoid or shun the plaintiff.
Byrne v Deane
Slot machines were found in a golf club. A song was made impliedly blaming a member. Ct held that insofar as the rhyme suggested plaintiff was suppressing illegal activity, it was not defamatory.
Berry v Irish Times
Photograph with words on a placard, the Supreme Court held this not to be defamatory.
Statute of limitations
Plaintiffs have 1 year from date of publication (or in respect of statements published via the internet from when the statement is ‘first capable of being viewed or listened to through that medium’) to take an action although in exceptional cases can extend to 2 years.
How do you bring a case?
Plaintiff and defendant both have to swear an affidavit verifying assertions of fact (Section 8)
Freedom of expression (it’s a balancing act): Reynolds v Malocco:
Court must not unnecessarily interfere with the right of freedom of expression. No hard and fast manner as to the factors to take into account in the exercise of this discretion. In order to prove publication, it is only necessary to show that one person received the communication and that his opinion of the subject was lowered as a result. A jury may, however, take into account the extent of publication when considering damages, including the extent of internet publication.
Publication
Communicating the defamatory comment to another person.
Tansey v Gill
Plaintiffs solicitor sought injunctive relief against ratemysolicitor.com. D argued that the comments were true and that he even had his own personal experiences with the solicitor in question. Court held defendant
had no prospect of success. Granted plaintiff Section 33 order prohibiting further publication of defamatory material and granting an injunction which suspended the operation of the website and deliver up the names of the people involved and concerned in the publication of defamatory material.
Reynolds v Malocco
Owners of newspaper and other media account were traditionally always identifiable but now with the advent of social media, not so easy. This is dangerous because a person’s business could be put in jeopardy and could cause jeopardy to their business.
McKeogh v Facebook
Student took case against several ISPs claiming he left a taxi without paying. He claimed he was abroad at the time. Ct held that the placing of the video on YouTube itself did not defame p but damages his reputation. Ct held: only in exceptional cases could justice be administered other than in public and this was not one of those cases. Ct refused to grant the injunction required.
Defences
S.16 Truth
S.17 Absolute privilege
S.18 Qualifed privilege
S. 20 Honest opinion
S. 25 Consent to publish
S. 26 Fair and reasonable publication on a matter of public interest
S.27 Innocent publication
Truth
No matter how old the allegation or how obscure or intrusive of a person’s privacy, p is not entitled to bring a defamation action in relation to publication of a true statement, and accordingly all defamatory statements are presumed false unless proven otherwise.
Section 17 privilege
If the statement is made under privilege there is no cause of action. Privilege can be absolute or qualified. In the case of absolute privilege, the intentions of the publisher are irrelevant.
Section 18 Qualified privilege
Attaches to communications where the informant has a legal, moral or social duty to communicate the information and the recipient has a similar duty to receive it. It is a defence for d to prove that the statement is covered by Part 1 of Schedule 1 or is in a report or decision referred to. It is also a defence to prove that a statement is in a report referred to in Part 2 of Schedule 1, unless p can prove that he asked d to publish a reasonable statement of explanation or contradiction, and d failed to do so, or did so in an inadequate or unreasonable way. These privileges do not protect publication of any statement prohibited by law, or statements that are not of public concern and not published for the public benefit. The defence
of qualified privilege fails if p proves malice. However, the defence will not fail just because the statement was published to someone else by mistake.
Section 18 Diop v Transdev:
HC awarded man 500 in defamation claim. Considering Griffin v Sunday Newspapers: to establish defamation, he had to “look at the entirety of the transaction or encounter between the parties”. Rejecting the defence of qualified privilege under section 18 once it had been established that p had a valid ticket, the interaction ceased to be covered by this defence because it had been established that p had a contractual right to travel and was not otherwise misbehaving.
Section 26 Honest opinion
(i) at the time of publication, d believed in the truth of the opinion (or thought that its author believed it to be true); the opinion was based on proven (or honestly believed) allegations of fact that were known to those to whom the statement was published; or the opinion was based on proven (or reasonably likely) allegations of fact which were privileged and the opinion related to a matter of public interest. To distinguish between allegations of fact and opinion, ct will consider: (i) the extent to which the statement is capable of being proved; (ii) whether the statement was likely to have been reasonably understood as an opinion, rather than a fact; and (iii) the words used and the extent of any qualification, disclaimer or caution.
Remedies
S22 Offer to make amends
S24 Apology
S28 Declaratory order
S30 Correction orders
S31 Damages
S22 Offer to make amends
must be in writing and state: (i) that it is an offer to make amends under Section
22, and (ii) whether it relates to the entire statement, part of it or a particular defamatory meaning only. An offer to make amends cannot be made after the defence has been delivered. However, an offer may be withdrawn before it is accepted and a new offer made. The requirements for the offer: (i) to make a suitable correction and sufficient apology; (ii) to publish the correction and apology in a “reasonable and practicable” manner, and (iii) to pay agreed compensation, damages and costs. If an offer to make amends is accepted and the parties agree on the implementation of the offer, ct may direct the defendant to take those measures. If the parties do not agree, the person who made the offer may make a correction and apology in a statement before the court in terms approved by ct and give an undertaking about the manner of publication. If the parties cannot agree on damages or costs, the court will decide the matter, taking into account the adequacy of any steps already taken to comply with the offer.
S28 Declaratory order
Stating that the defamatory statement is false in circumstances where the party is not concerned about pursuing damages. D can now make lodgements in ct without admission of liability (Section 24) which means p awarded lesser sum. Section 29: d may offer a sum of money which is also not an admission of liability.
S30 Correction orders
Can be applied for which detail the exact contents and method of publication of a correction in respect of a false defamatory statement.
S31 Damages
Judge can now direct a jury on the question of damages. Section 31 factors intended to guide ct in an award of making general damages: and Section 32 dictates that aggravated and punitive damages are for special circumstances only. General damages in respect of damage to reputation, special damages in respect of financial losses resulting from that damage to reputation, aggravated damages where d conducted the defence of the action in such a way as to aggravate the damage to p’s reputation, and punitive damages when d made the defamatory statement maliciously or recklessly. Orders prohibiting the publication (or further publication) of a defamatory statement and summary disposal of actions can also now be applied for.
