Defences to Defamation

Question 1

Defences:

Section 15 of the Defamation Act 2009 abolishes the common law defences to an action for defamation, except the defences of absolute and qualified privilege. (9)

Answer 1

• Qualified privilege;
• Fair and reasonable publication on a matter of public interest
(responsible journalism);
• Honest opinion (formerly known as fair comment);
• Innocent publication (formerly known as innocent dissemination);
• Apology;
• Consent; and
• Offer of amends;
• Truth (formerly known as justification);
• Absolute privilege.

Question 2

Truth: Section 16(1) of the Defamation Act 2009 provides it is a defence for the defendant to prove that the defamatory statement “is true in all material respects”.

Answer 2

It is for the plaintiff to prove publication of the statement and that the statement was defamatory of the plaintiff, but once this has been established the statement is presumed to be false and the defendant must prove the truth of the statement.

The law will not protect a false reputation; therefore, if the statement is true there is no defamation. Even if the publication of the statement was motivated by malice, truth is a good defence.

On the other hand, if the defendant raises the defence of truth and fails to prove the truth of the statement, he may be liable to the plaintiff for aggravated damages for having persisted in the defamation.

Question 3

Alexander v. North Eastern Railway Company (1865) 6 B & S 340

Answer 3

where a statement was made that the plaintiff had been convicted of travelling without a valid ticket, fined £1 and sentenced to three weeks’ imprisonment. In fact, the plaintiff was fined £1 but only sentenced to two weeks’ imprisonment.

Having established the actual truth, it was held the defendant could rely on the defence of justification as the allegation had been proved to be substantially true.

Question 4

Crawford v. Todd

Answer 4

the defendant made a statement that the plaintiff kept a gambling den and sold intoxicating liquor without a licence. The defendant was able to prove the truth of the former statement but not the latter. It was held the defendant could not rely on the defence of justification as the defence had to be as wide as the defamation. The plaintiff was still defamed by the second, unproven, statement.

Question 5

Two allegations and the Act

Answer 5

Section 16(2) of the Defamation Act 2009 provides if a statement contains two or more distinct allegations against the plaintiff the defence of truth shall not fail by reason only of the truth of every allegation not being proved, if the allegation not proved to be true does not materially injure the plaintiff’s reputation having regard to the truth of the remaining allegation.

Question 6

Absolute Privilege: The Act

Answer 6

Section 17(1) of the Defamation Act 2009 preserves the common law in respect of the defence of absolute privilege. Section 17(2) goes on to provide for certain instances where the defence of absolute privilege can arise. These instances include, inter alia, a statement made in either House of the Oireachtas, a statement made in the European Parliament and a statement contained in a judgment of a court, as well as fair and accurate reports of proceedings held in public before a court or tribunal.

Question 7

The President and Defamation during course of function.

Answer 7

Article 13.8.1° of the Constitution confers absolute privilege on the President in relation to the exercise and performance of the powers and functions of his office (Presidential privilege). Thus, if the President made an address to the Nation pursuant to Article 13.7.2° and made a defamatory statement in the course of that address he would not be liable to be sued for defamation.

Question 8

The Act and reporting of public hearings

Answer 8

Section 17(2) (i), (j) and (k) of the Defamation Act 2009 provide that the fair and accurate reporting of proceedings publicly heard before any court shall be privileged. Therefore, a fair and accurate report of the evidence given at a murder trial would attract absolute privilege.

Question 9

Qualified Privilege

Answer 9

In order for the defence of qualified privilege to arise the maker of the statement must have a legal, moral or social duty or interest to make the statement and the receiver of the statement must have a corresponding interest in receiving the statement.

The defence of qualified privilege is “qualified” in nature because, if the person making the statement acts out of malice, he / she cannot successfully raise the defence of qualified privilege. Malice destroys the defence of qualified privilege (section 19(1) of Defamation Act 2009).

Question 10

Harrison v. Bush (1855) 5 El & Bl 344 said:

Answer 10

A communication made bona fide upon any subject-matter in which the party communicating has an interest, or in reference to which he has a duty, is privileged, if made to a person having a corresponding interest or duty. And the word “duty” cannot be confined to legal duties … but must include moral and social duties of imperfect obligation.

This statement was adopted by Geoghegan J in the Irish case of Reilly v. Gill (1946) 85 ILTR 165.

Question 11

Leech v. Independent Newspapers (Ireland) Limited [2007] IEHC 223

Answer 11

The test as to qualified privilege involves a situation where a party has an interest in receiving information and another party has a duty to pass that information on to them. The classic case, which is often repeated in many of the textbooks, is that one has visitors to one’s house, or one’s business, and one knows that one’s employee has a dubious reputation and one comes to the conclusion, perhaps wrongly, that he or she may steal and so the person informs his or her guests that the employee is a thief. Now, as it turns out, the information you have as to a dubious reputation is incorrect, the employee is not a thief and he or she takes a defamation action against you in relation to what you have said. In those circumstances, because you have a duty in protecting those who come into your home, or into your business premises, and because your guests have an interest in relation to receiving that information with a view to their own protection, a situation of privilege arises.

Question 12

An example of a case where a person had a legal duty to speak is the case of Kirkwood Hackett v. Tierney [1952] IR 185

Answer 12

Where it was held that the President of UCD had a duty to make a full enquiry in respect of a money draft allegedly paid over to the wrong student. The President made a statement to the student in the presence of the College Secretary, and this was held to attract the defence of qualified privilege, in the absence of malice.

Question 13

Corcoran v. W & R Jacob & Company [1945] IR 446

Answer 13

it was held an employee had a duty to communicate to his employer his suspicions of theft on the part of a fellow employee. The employer obviously had an interest in receiving this type of communication.

Question 14

The Receiver of the Communication Must Have Had an Interest in Receiving the Communication for Qualified Privilege

The Defendant Must Have Had a Duty/Interest in Making the Communication

Answer 14

The person to whom the statement is communicated must have a corresponding interest in receiving the statement.

Question 15

An example of a case where the person did not have such an interest is the case of Hynes-O’Sullivan v. O’Driscoll [1988]

Answer 15

the plaintiff made a complaint against the defendant solicitor to the Law Society of Ireland and the defendant in turn made a complaint against the plaintiff to the Irish Medical Association in the mistaken belief that the plaintiff was a member of the IMA. In fact the plaintiff was not a member of the IMA and therefore the IMA had no interest in receiving the communication from the defendant. It was held the communication did not attract the defence of qualified privilege.

Question 16

The Act and qualified privilege and persons needing to know

Answer 16

Section 18(2) of the Defamation Act 2009 reforms the law in this area and provides that a defendant may successfully raise the defence of qualified privilege if he can show that he “believed upon reasonable grounds” that the person to whom he communicated the statement had a duty or interest in receiving the statement. Section 19(2) provides the defence shall not fail by reason only that the defendant “mistook” the person to whom he communicated the statement to be an interested person.

Question 17

Malice and Privilege

Answer 17

If the communication is motivated by malice, this will destroy the defence of qualified privilege (s 19(1) of Defamation Act 2009). It is for the plaintiff to prove malice on the defendant’s part.

Question 18

Fair and Reasonable Publication on a Matter of Public Interest

Answer 18

Section 26 of the Defamation Act 2009 creates a new statutory defence of “fair and reasonable publication on a matter of public interest”. To raise the defence successfully, the defendant must prove:

1. the statement was published in good faith and in the course of, or for the purpose of, the discussion of a subject of public interest, the discussion of which was for the public benefit,
2. that in all the circumstances of the case the manner and extent of publication did not exceed that which was reasonably sufficient, and
3. in all the circumstances of the case, it was fair and reasonable to publish the statement.

Question 19

Reynolds v. Times Newspapers Ltd [2001] 2 AC 127.

Answer 19

It was held the publication by the media of all political information should not automatically attract qualified privilege whatever the circumstances, since that would fail to provide adequate protection for a person’s reputation. However, Lord Nicholls in that case recognised that qualified privilege could arise in the context of media reporting of political matters in the public interest but added that the circumstances of the case would have to be taken into account.

Question 20

Lord Nicholls set out ten factors which should be considered in determining if this type of qualified privilege should defeat a claim for defamation.

Answer 20

1. The seriousness of the allegation. The more serious the charge, the more the public is misinformed and the individual harmed, if the allegation is not true.
2. The nature of the information, and the extent to which the subject- matter is a matter of public concern.
3. The source of the information. Some informants have no direct knowledge of the events. Some have their own axes to grind, or are being paid for their stories.
4. The steps taken to verify the information.
5. The status of the information. The allegation may have already been
   the subject of an investigation which commands respect.
6. The urgency of the matter. News is often a perishable commodity.
7. Whether comment was sought from the plaintiff. He may have
   information others do not possess or have not disclosed. An approach
   to the plaintiff will not always be necessary.
8. Whether the article contained the gist of the plaintiff’s side of the story.
9. The tone of the article. A newspaper can raise queries or call for an
   investigation. It need not adopt allegations as statements of fact.
10. The circumstances of the publication, including the timing

Question 21

Jameel v. Wall Street Journal Europe Sprl [2006] All ER 1279,

Answer 21

he claimants were prominent Saudi Arabian businessmen. The defendant was the Wall Street Journal newspaper, described by Lord Bingham as “a respected, influential and unsensational newspaper”. The defendant published an article alleging that the central bank of Saudi Arabia was monitoring certain bank accounts to prevent their use in channelling funds to terrorist organisations. The article listed the names of a number of individuals and companies as account holders, including the name of the claimants’ trading corporation and said the corporation “could not be reached for comment”.

The defendant sought to rely on the defence of qualified privilege. At first instance it was found the defence could not be successfully raised as the defendant had failed to obtain the claimant’s response prior to publication. On appeal to the House of Lords on the issue of responsible journalism Lord Bingham first noted the context of the article:

he subject matter was of great public interest,
in the strictest sense. The article was written by an experienced specialist reporter and approved by senior staff on the newspaper and “Wall Street Journal” who themselves sought to verify its contents. The article was unsensational in tone and (apparently) factual in content. The respondents’ response was sought, although at a late stage, and the newspaper’s inability to obtain a comment recorded. It is very unlikely that a comment, if obtained, would have been revealing, since even if the respondents’ accounts were being monitored it was unlikely that they would know. It might be thought that this was the sort of neutral, investigative journalism which Reynolds privilege exists to protect. I would accordingly allow the appeal and set aside the Court of Appeal judgment.

Question 22

Seaga v. Harper [2009] 1 AC 1

it was accepted that Reynolds privilege was not confined to the press and broadcasting media, but extended to publications made by any person who published material of public interest in any medium, so long as the conditions applicable to responsible journalism were satisfied.

Answer 22

he standard of conduct which those conditions required of the publisher of the material was to be applied in a practical manner, having regard to practical realities and to the whole context. In that case, the defendant was a Jamaican politician and leader of the opposition. He spoke at a public meeting and made certain defamatory statements about the commissioner of police in the knowledge that the press would be present at the public meeting. The defendant’s comments were reported in the media and the claimant sued the politician for defamation.

Question 23

The decisions of the House of Lords in Reynolds and Jameel have been accepted in this jurisdiction, most recently by Charleton J in an ex tempore ruling in the case of

Answer 23

Leech v. Independent Newspapers (Ireland) Limited [2007] IEHC 223:

Question 24

Honest Opinion

Answer 24

Section 20 of the Defamation Act 2009 creates a new statutory defence of “honest opinion” to replace the common law defence of “fair comment”.

Section 20(1) provides it is a defence for the defendant to prove that the statement alleged to be defamatory consisted of an opinion which was honestly held by the defendant and which related to a matter of public interest.

Question 25

How is an opinion honestly held?

Answer 25

Section 20(2) provides that an opinion is honestly held if:

1. at the time of the publication of the statement the defendant believed the opinion to be true, or if the defendant is not the author of the statement that the defendant believed that the author believed the opinion to be true, and
2. the opinion was based on allegations of fact either specified in the statement containing the opinion or else facts which were known or might reasonably have been known by the persons to whom the statement was published and referred to in the statement. Or, alternatively, the opinion was based on allegations of facts to which either the defence of absolute or qualified privilege would apply.

Question 26

Convery v. The Irish News [2008] NICA

Answer 26

where the defendants published a critical review of the plaintiff’s restaurant. They stated that the cola served was “warm and watery” and the “chicken marsala was inedible”; these were held to be statements of opinion. As Kerr LCJ explained the meaning of the term “inedible”
was that “the reviewer found it inedible, not that it was physically incapable of being eaten”.

Question 27

Offer of Amends

Answer 27

The defence is particularly designed to deal with a situation where a defendant “innocently” defames the plaintiff. Any defendant may make an offer of amends under s 22 of the Defamation Act 2009. However, a defendant will only be able to rely on having made an offer, in circumstances where the offer is rejected and the plaintiff institutes proceedings against the defendant, where the defendant “innocently” defamed the plaintiff.

Question 28

What defeats an offer of amends?

Answer 28

Section 23(2) provides the defence of having made an offer of amends shall fail if the plaintiff proves that the defendant knew or should reasonably have known at the time of the publication of the statement that the statement referred or was likely to be understood as referring to the plaintiff and that it was false and defamatory of the plaintiff.

Question 29

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

Answer 29

where 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 30

Hulton v. Jones [1910] AC 20

Answer 30

a newspaper published a fictional account of one “Artemus Jones” who led a double life as a churchwarden in England while frequenting casinos and chasing women in France. The plaintiff was a barrister by the same name and was able to prove that persons had understood the statements to refer to him. The facts were slightly unusual as the plaintiff had previously worked at the newspaper and was known to some of the employees of the newspaper, but not the author of the statements.

Question 31

Charles Merrill v. Sunday Newspapers Limited (The Irish Times, 9th and 10th June, 1989)

Answer 31

An article was published in the Sunday World concerning one Charles Merrill-Mount, an American living in Dublin, who had been convicted of selling letters and documents from the library of the US Congress. The Sunday World mistakenly accompanied the article with a photograph of the plaintiff, who was also an American living in Dublin, called Charles Merrill. The defendant admitted its mistake and apologised to the plaintiff and the plaintiff was awarded damages for defamation. It would appear that an offer of amends was rejected by the plaintiff.

Question 32

What is an offer of amends comprised of?

Answer 32

Section 22 of the Defamation Act 2009 provides that a defendant may make an offer of amends in writing, stating that it is an offer of amends made under s 22, and state whether the offer of amends is in respect of the whole or part only of the alleged defamatory statement. The offer of amends must contain an offer to:

(a) make a suitable correction of the statement concerned and a suitable apology to the plaintiff,
(b) publish the correction and apology in a reasonable and practicable manner, and
(c) pay such sum in compensation or damages and costs as may be agreed between the parties or as may be determined.

Question 33

Christie v. TV3 Television Networks Ltd. [2017] IECA 1

Answer 33

he defence was successfully raised by the defendant. In assessing damages, the Court of Appeal said (at [41]–[42]):
It is reasonable to suppose that the new offer of amends system was introduced by the Oireachtas so that fully contested defamation actions might be avoided where this was possible by means of a swift apology to the injured party, the publication of a suitable apology and correction and the payment of compensation where this was warranted. Since it is very much in the public interest that the parties engage in what amounts to a conciliation process, it is only appropriate that the level of damages be reduced appropriately in acknowledgment of the defendant’s willingness to accept it’s wrong-doing. . . .

In the present case TV3 not only swiftly acknowledged its wrong, but it offered to apologise and did apologise to the plaintiff on its main evening television bulletin within a few days of the first publication. This is all greatly to its credit and it should accordingly be rewarded by a suitable discount by reason of the fact that it also offered to make amends under s. 22 of the 2009 Act. In the High Court O’Malley J. measured that discount at approximately 33%, but for my part I would go further: I consider that TV3 should receive a discount of 40% in recognition of the swiftness of the apology and the general prominence given to the apology.

Question 34

Innocent publication

Answer 34

Under the provisions of s 27 it is a defence for a defendant to prove:

(a) he was not the author, editor or publisher of the statement,
(b) he took reasonable care in the publication of the statement, and
(c) he did not know and had no reason to believe that what he did caused
or contributed to the publication of a defamatory statement.

Question 35

Consent as a Defence

Answer 35

At common law, a person has a complete defence to a defamation action if the defendant can prove that the plaintiff consented to publication of the defamatory matter. A valid waiver of rights will also constitute a defence (s 34 of Civil Liability Act 1961).

Section 25 of the act

Question 36

Application to the Courts

Answer 36

Section 38 of the Defamation Act 2009 provides a claim for defamation should be brought within one year of the date the cause of action accrued (the date of publication). The court may, in exceptional cases, extend the limitation period by a further 12 months if it is in the interests of justice to do so and the prejudice to the plaintiff if the period was not extended would outweigh the prejudice to the defendant if the period was extended.

Question 37

Courts

Answer 37

A defamation action may be commenced in the Circuit Court if the amount of damages claimed does not exceed €50,000. If the claim exceeds €50,000 then proceedings should be initiated in the High Court.