If you wish to get advice from a solicitor regarding a possible defamation case, you can contact Roddy Tyrrell at 01-6671476 or submit this quick contact form.
(Update: Since this article was written in 2009, there have been some changes to the law including the reduction in the Statute of Limitations period from six years to one year. An update by barrister Karl Sweeney is available on our website here).
Copyright of Kieron Wood. This article may not be distributed or copied without the author's consent. Feel free however to share with friends and colleagues using the social media sharing buttons on the right.
Defamation is one of the most serious dangers facing journalists and publishers today. Eighty per cent of all defamation actions are brought against the media - and a libel action can bankrupt a small newspaper or radio station.
Balance of rights
Journalists may feel that they should have the right to say whatever they like. After all, 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 Article goes on to say that, because of the importance of educating public opinion, the State will try to ensure that the organs of public opinion such as the radio and the press (it doesn't mention television or the internet) keep their right to liberty of expression, but they shall not be used to undermine public order, morality or the authority of the State.
The right of freedom of speech is also guaranteed by Article 10 (1) of the European Human Rights Convention, which provides that: "Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas, without interference by public authority and regardless of frontiers."
But Article 10 (2) subjects this freedom to such restrictions "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".
Of course, the Irish Constitution does not only guarantee freedom to the media. It also guarantees to respect the personal rights of citizens. Article 40.3.2 of the Constitution says "the State shall, in particular, by its laws, protect as best it may from unjust attack (and, in the case of injustice done, vindicate) the life, person, good name and property rights of every citizen."
In the 1988 case of Kennedy v Hearne, the Irish High Court specifically acknowledged the role played by the law of defamation in vindicating a citizen's right to his good name.
What is defamation?
The law of defamation in Ireland is governed by the Constitution, common law and the Defamation Act 2009. That Act repeals the Defamation Act 1961, which was in force until the first day of 2010. The Defamation Act 2009 now governs all claims of defamation arising since the commencement of the new legislation.
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: according to the Defamation Act 2009, a defamatory statement is one which tends to injure a person’s reputation in the eyes of reasonable members of society. (That means that a person cannot sue for having his reputation lowered in the eyes of, for example, other members of his criminal gang!)
Defamation has traditionally been 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 obsolete. Even though broadcasting is, in one way, a more transient medium than newspapers, the invention of tape and video recorders and the internet means that a false statement can now be preserved in the same way as a newspaper cutting. So today, a defamatory statement broadcast on radio or television or the internet would be regarded as libellous, rather than slanderous. The 2009 act abolishes the separate torts of libel and slander and replaces them with the “tort of defamation”.
An actionable defamatory statement has three ingredients:
- it must be published,
- it must refer to the complainant and
- it must be false.
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.)
A person who is aware that a libellous report is about to be published may apply to the courts for an injunction to prevent publication. But in the case of National Irish Bank v Radio Telefis Eireann  2 IR 465, the Supreme Court said that, if the publisher made out a strong case for publication on a public interest basis, the court, in its discretion, should not grant the injunction, but leave the applicant to seek a remedy in damages.However, in 1998 the High Court granted an interlocutory injunction to nightclub owner John Reynolds to prevent former solicitor Elio Malocco publishing what Reynolds claimed would be a disparaging article about the club owner in a new magazine, Patrick  IEHC 175. Mr Justice Kelly said this was "a jurisdiction of a delicate nature" and "the Court must be circumspect to ensure that it does not unnecessarily interfere with the right of freedom of expression". He said he would not set out "hard and fast manner" the factors which the Court could take into account in the exercise of this discretion, but to refuse an injunction "would be to consign the plaintiff to a trial where damages would be an inadequate remedy because of the virtual impossibility of ever recovering any sum awarded".
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.
A defamatory statement need not necessarily name anyone. It may suggest a person or persons by - for example - their profession, location or connections. A former garda commissioner was awarded £30,000 damages for the use of a graphic which featured his ears in a television programme on corruption! And a senior barrister settled a High Court action against Irish television for an undisclosed amount for using a graphic of her car in a story about drunk drivers.
If just one person gives credible evidence that he recognised the complainant by the description or image, that is enough to ground a defamation action.
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. No matter how old the allegation or how obscure or how intrusive of a person's privacy, a complainant is not entitled to bring an defamation action in relation to publication of a true statement.
A false report which is published maliciously is likely to attract higher damages than an erroneous report published innocently - but damages for errors can still be high enough to put media organisations out of business.
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.
For example, a Dáil deputy or member of the Seanad may say what he wishes about a person within the confines of the chamber. No matter how scurrilous the allegation or how improper the motive for making it, he may not be sued for that statement. Similarly in a court of law, a judge may not be sued for anything he may say, and a barrister may make whatever allegations he pleases while on his feet, without fear of an action for defamation. (A lawyer who makes irrelevant, insulting and provocative statements may be guilty of contempt of court, but that is a different matter!)
A fair, accurate and contemporaneous media report of Oireachtas or court proceedings is also absolutely privileged, even if the reporter is motivated by malice. Clearly this exception is aimed at allowing free speech for members of the judicial and legislative arms of government, and for accurate reports of their views.
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. For example, a person may write to an employer making allegations of dishonesty or incompetence against an employee. If the allegations are made in good faith, even if they are factually wrong, the communication is not actionable. This privilege is defeated by proof of malice.
The Defamation Act also provides qualified privilege for reports of the proceedings of certain foreign organisations (such as the Court of Justice of the European Communities), copies of entries in public registers and notices, without the necessity to correct or explain such reports.
Qualified privilege is also granted for reports of certain public meetings, organisations and bodies (such as local authorities and tribunals) "subject to explanation or contradiction". In these cases, the publisher will lose the privilege if he fails to amend or clarify an erroneous statement.
Occasionally an apology published by a media organisation may reflect adversely on the skill and ability of the journalist who wrote or broadcast the article in question. In the 1938 case of Willis v Irish Press, a journalist sued his employer for publishing what he claimed was an unwarranted apology. The Supreme Court ruled that publication of the apology was privileged, as it was a matter of self-defence for the newspaper. The rationale of that decision, coming at about the time of the introduction of the Constitution, might well be considered dubious today.
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 have traditionally been settled before coming to court.
A defendant who loses a defamation action is likely to have to meet the legal bill of both sides. He may limit his exposure to costs by lodging money in court in an offer of settlement.
A publisher who denies liability must take the risk of losing a case after it has been running in court for some days - or even weeks - with the attendant enormous legal bill. The highest award ever given by an Irish court in defamation was €10 million in November 2010. The award was made to businessman Donal Kinsella, who sued his former employer, Kenmare Resources, over a press release it sent out concerning an incident where he had sleep-walked into a woman’s bedroom while on company business in Africa. The jury awarded €9 million in compensatory damages and €1 million in aggravated damages. Prior to the Kinsella case, the highest libel award was €1.9 million in damages awarded to Mrs Monica Leech over a series of articles in the Evening Herald newspaper in 2004 which falsely suggested that she had had an affair with a government minister.
If a publisher pleads justification (that an alleged fact is substantially true) and this turns out not to be the case, the jury may award aggravated damages as a punishment for the additional harm done to the complainant's reputation. For example, when Elton John sued the Sunday Mirror in 1993, he was awarded £75,000 in ordinary damages, but almost four times that amount in punitive damages. (This was reduced to a total of £75,000 on appeal.)
If a jury finds that a complainant has been libelled, juries have traditionally awarded at least nominal damages. Traditionally, this was a farthing. In the 1955 case of Campbellv Irish Press, concerning a review of a snooker exhibition which claimed "the table told lies", the jury awarded no damages, but the Supreme Court substituted an award of £1. In the action taken by the former Irish Taoiseach (prime minister) Albert Reynolds against the Sunday Times, it was just one penny. And in the April 2001 case of Irish parliamentarian Beverley Cooper-Flynn against state broadcaster RTE, the jury found that RTE had not proved its case, but other evidence showed that the plaintiff's character had not been damaged. She was awarded no damages and ordered to pay a legal bill estimated at £2 million.
Since the establishment of the Press Ombudsman and the Press Council of Ireland in 2007, anyone who believes he or she has been defamed may complain to the Press Ombudsman. If the ombudsman finds in their favour, he may instruct the media organisation to publish an appropriate apology or correction. The Press Council was set up following the 2003 report of the government's legal advisory group on defamation, which also recommended reform of the 1961 Defamation Act.
The 2009 act comprises 44 sections, including a definition of defamation, defences, remedies and the establishment of criminal liability for blasphemy. In the time-honoured draftsmen’s tradition of never using a single word where a clause (or two, or three) will do, the legislation is extraordinarily complicated in places. This is a somewhat simpler version:
The limitation period for defamation actions is reduced from six years to one year from the date of first publication. The period can be extended to up to two years by court order, but the court will not extend the period unless an extension is required in the interests of justice and the prejudice suffered by the plaintiff would significantly outweigh the prejudice to the defendant. When deciding whether to extend time, the court will consider the reason for the failure to bring the action in time and the extent to which the delay means that relevant evidence is no longer available.
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.
The “tort of defamation” consists of the publication, by any means, of a defamatory statement about somebody to one or more person. 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:
- the publisher did not intend to publish the statement to the other person, and
- it was not reasonably foreseeable that publication to the first person would result in publication to the other person.
Proof of special damage – or actual loss – is not required except actions for slander of title, slander of goods or malicious falsehood. In such cases, the plaintiff has to prove special damage or that publication of the statement was calculated to cause (and likely to cause) financial loss in respect of his property or office, profession, calling, trade or business.
The plaintiff must also prove that the statement was untrue, was published maliciously and referred to the plaintiff, his property or office, profession, calling, trade or business.
Where the plaintiff or defendant is making an allegation of fact, he must swear an affidavit verifying the allegations within two months of service of the pleadings. The maximum penalty for swearing a false or misleading affidavit is a fine of €50,000 and five years’ imprisonment.
Even if a statement contains several false allegations, a plaintiff will have only one cause of action. Similarly, if the same defamatory statement is made to several people, there is only one cause of action, unless the court decides otherwise.
If a defamatory statement is published about a group of people, any member of that group has a cause of action if the statement could reasonably be understood to refer to that person, either because of the number of people in the group or the circumstances in which the statement is published.
The new act applies to companies as well as individuals, and a company may bring a defamation action whether or not it has incurred any financial loss as a result.
The problem of excessive jury awards of damages being awarded by High Court juries is tackled by the provision in section 13 that, on appeal, the Supreme Court may substitute an “appropriate amount for any High Court jury award.
If asked, a judge may decide – in the absence of the jury – whether a statement is “reasonably capable” of having the suggested imputation, and whether that imputation is reasonably capable of having a defamatory meaning.
If the court rules that a statement is not reasonably capable of having the suggested imputation or being defamatory, it must dismiss that part of the action.
All earlier defences are abolished by the new act, except certain statutory defences. The main defence is now the defence of truth, where a defendant proves that his statement is true in all material respects. This defence may still be used, even if the truth of every allegation is not proved, as long as the unproven words do not materially injure the plaintiff’s reputation in the light of the remaining true allegations.
The existing defence of absolute privilege is retained and extended to include any:
(a) statement made in either House of the Oireachtas by a TD or Senator,
(b) report of a statement by a TD or Senator produced by authority of either House,
(c) statement made in the European Parliament by an MEP,
(d) report of a statement by an MEP produced by authority of the European Parliament,
(e) statement made in a court judgment,
(f) statement made by a person performing a judicial function,
(g) statement made by a party, witness, lawyer or juror during judicial proceedings,
(h) statement made during and connected with proceedings involving limited functions of a judicial nature (such as the Employment Appeals Tribunal),
(i) fair and accurate report of public proceedings or a decision of any court in the Republic or Northern Ireland,
(j) fair and accurate report of certain family law proceedings,
(k) fair and accurate report of proceedings of courts including the Court of Justice of the European Union, the Court of First Instance of the European Union, the European Court of Human Rights and the International Court of Justice,
(l) statement made in proceedings before a committee appointed by either or both Houses of the Oireachtas,
(m) statement made in proceedings before a committee of the European Parliament,
(n) statement made during and connected with proceedings before a Tribunal of Inquiry,
(o) statement in a tribunal report,
(p) statement made during and connected with proceedings before a commission of investigation,
(q) statement in a commission report,
(r) statement made during a coroner’s inquest or in a decision or verdict at an inquest,
(s) statement made during an inquiry conducted by authority of the government, a minister, the Dáil or Seanad or a court,
(t) statement made during an inquiry in Northern Ireland on the authority of the British government, Northern assembly, minister or court,
(u) statement in a report of such inquiries,
(v) statement made during and connected with proceedings before an arbitral tribunal, or
(w) statement made in accordance with a court order in the Republic of Ireland.
Qualified privilege may be pleaded as a defence where a statement was published to a person who had a legal, moral or social duty to receive the information, or where the defendant reasonably believed that the person had such a duty or interest, and the defendant had a corresponding duty to communicate the information.
It is a defence for a defendant 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 the plaintiff can prove that he asked the defendant to publish a reasonable statement of explanation or contradiction, and the defendant 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 the plaintiff proves malice. However, the defence will not fail just because the statement was published to someone else by mistake.
Where a defence of qualified privilege fails in the case of one defendant, another defendant may still plead that defence unless he was vicariously liable for the acts or omissions of the first defendant which led to the publication.
The “honest opinion” defence is available for honestly-held opinions as long as—
- at the time of publication, the defendant 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.
Where a defamatory opinion is published jointly by more than one person, the defence of honest opinion is available to a defendant who does not honestly believe it, unless he was vicariously liable for the acts or omissions of the joint publisher at the time of publication. To distinguish between allegations of fact and opinion, a court will consider:
- the extent to which the statement is capable of being proved;
- whether the statement was likely to have been reasonably understood as an opinion, rather than a fact; and
- the words used and the extent of any qualification, disclaimer or caution.
A person accused of defamation may make an offer of amends. Such an offer must be in writing and state:
- that it is an offer to make amends under section 22, and
- 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. An “offer to make amends” means an offer—
- to make a suitable correction and sufficient apology,
- to publish the correction and apology in a “reasonable and practicable” manner, and
- 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, the court 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 the court 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.
Once an offer to make amends is accepted, no defamation action can be brought in respect of the original statement unless the court considers that it is just and proper to so do. It is a defence to a defamation action to prove that an offer to make amends was not accepted, unless the plaintiff proves that the defendant knew when the original statement was published that it referred to the plaintiff and was false and defamatory. If a qualified offer of amends is not accepted, the defence applies only to that part of the statement.
A person who offers to make amends does not have to plead it as a defence. If a defendant does plead this defence , he cannot plead any other defence. If the defence is pleaded in respect of a qualified offer only, no other defence may be pleaded in respect of that part of the statement.
A defendant may give evidence in mitigation of damages that he—
- made (or offered) an apology and
- published (or offered to publish) the apology with similar prominence to the original statement as soon as practicable after the complaint or the bringing of the action, whichever was earlier.
A defendant who intends to give such evidence must notify the plaintiff in writing in advance.
One important change in the new act is that an apology no longer constitutes an express or implied admission of liability and is not relevant to the issue of liability. Evidence of such an apology is not admissible in any civil proceedings as evidence of liability.
The defence of consent may be pleaded where a plaintiff consented to publication of the impugned statement.
The defence of fair and reasonable publication on a matter of public interest may be pleaded where a defendant can prove that a statement was published—
- in good faith and
- during (or for the purpose of) discussion of a subject of public interest for the public benefit.
The manner and extent of publication must not exceed what is reasonably sufficient, and it must be fair and reasonable to publish the statement.
In deciding whether publication was “fair and reasonable”, the court can take into account any relevant matter, including:
(a) the extent to which the statement refers to the performance of public functions;
(b) the seriousness of any allegations;
(c) the context and content (including the language) of the statement;
(d) the extent to which the statement distinguished between suspicions, allegations and facts;
(e) the extent to which exceptional circumstances required publication of the statement at that time;
(f) where the publisher was a member of the Press Council, the extent to which the person adhered to the council’s code of standards and the decisions of the Press Ombudsman and Council (or (g) equivalent standards, where the publisher was not a member of the Press Council).
(h) the extent and prominence of the plaintiff’s version of events or
(i) attempts made by the publisher made to obtain and publish a response; and
(j) any attempts made to verify the allegations.
Where a plaintiff failed or refused to respond to the defendant’s attempts to establish his version of events, this does not imply consent to publication or entitle the court to draw any inference.
A statement issued by the Department of Justice, Equality and Law Reform on 23 April 2010 said: "Subscription to the Press Council and adherence to the Code of Practice for newspapers and periodicals will strengthen the entitlement to avail of the new defence of reasonable publication in any court action. Non-members of the Press Council will be required to have in place an equivalent fairness regime or to operate an equivalent and publicised code of standards to avail of that defence."
The defence of innocent publication may be pleaded where the defendant can prove that—
- he was not the author, editor or publisher of the statement,
- he took reasonable care in relation to its publication and
- he did not know, and had no reason to believe, that his actions would lead to defamation proceedings.
A person is not considered the author, editor or publisher of a statement if he was responsible only for the printing, production, distribution or selling of printed material, or the processing, copying, distribution, exhibition or sale of a film or sound recording or electronic recording or storage, or the playback or distribution equipment.
In deciding whether a person took reasonable care about his actions, the court will consider—
- the extent of that person’s responsibility for the content of the statement or the decision to publish it,
- the nature or circumstances of the publication, and
- the person’s previous conduct or character.
A person who claims to be the subject of an alleged defamatory a statement may apply to the Circuit Court for a declaratory order that the statement is false and defamatory. The court will make a declaratory order if it is satisfied that—
- the statement is defamatory of the applicant and the respondent has no defence,
- the applicant requested the respondent to publish an apology, correction or retraction of the statement, and
- the respondent failed to do so or did not give the apology, correction or retraction similar prominence to the original statement.
An applicant for a declaratory order does not have to prove that a statement is false. Anyone who applies for a declaratory order cannot bring any other proceedings arising out of the statement to which the application relates.
A court which makes a declaratory order may also make a correction order and an order prohibiting publication of the statement, but it cannot award damages. The court can give directions about the delivery of pleadings and the time and manner of trial of any issues in order to come to a speedy decision.
A defendant may give the plaintiff written notice that he is paying an amount into court in satisfaction of the action, without admission of liability. The plaintiff may accept the payment in full settlement of the action.
Where a court finds that a statement was defamatory and the defendant has no defence, the plaintiff may ask for a correction order. The order specifies when the correction must be published, and the form, content, extent and manner of publication. Unless the plaintiff requests otherwise, the correction must be published in a way that will ensure that it is communicated to all (or substantially all) of the people to whom the defamatory statement was published. A plaintiff who intends to apply for a correction order must inform the defendant in writing at least seven days before the trial, and must inform the court at the trial. An application may be made at any time the court directs.
The parties in a defamation action may make submissions to the court about damages. In the High Court, the judge must give the jury directions about damages, taking into account:
(a) the nature and gravity of the original allegation,
(b) the means of publication, including their possible lasting nature,
(c) the extent of circulation of the defamatory statement,
(d) the offer of any apology, correction or retraction,
(e) any offer to make amends by the defendant, whether or not that was pleaded as a defence,
(f) the importance of the plaintiff’s reputation in the eyes of some or all recipients of the defamatory statement,
(g) the extent to which the plaintiff contributed to or acquiesced in the publication,
(h) the plaintiff’s reputation,
(i) the extent to which the defence of truth is successfully pleaded if the defendant proves the truth of only part of the statement,
(j) the extent to which the defendant has agreed to the plaintiff’s request to publish a reasonable statement of explanation or contradiction if the defence of qualified privilege is pleaded, and
(k) any order prohibiting publication, or any correction order that may be made.
Where an apparently innocent statement is defamatory due to facts known to only some recipients, it will be treated as having been published to those people only.
With the court’s permission, the defendant may give evidence of any matter which has a bearing on the reputation of the plaintiff, provided that it relates to matters connected with the defamatory statement. The defendant may also point out if the plaintiff has been awarded damages for substantially the same allegations in another action.
The court may award special damages for any financial loss suffered by the plaintiff as a result of the injury to his reputation. Where a defendant is liable to pay damages and the conduct of his defence aggravated the injury to the plaintiff’s reputation, the court may order the payment of aggravated damages. Where it is proved that the defendant intended to publish the defamatory statement to someone else knowing that it would be understood to refer to the plaintiff, and knew that the statement was untrue (or was reckless as to whether it was true or not), the court may also award punitive damages.
The plaintiff may ask the judge to prohibit further publication of a defamatory statement where the defendant has no defence that is reasonably likely to succeed. The judge cannot prohibit journalists from reporting his order, as long as the reports do not include the statement to which the order relates.
A plaintiff may be awarded summary relief if the judge is satisfied that a statement is defamatory, and the defendant has no defence that is reasonably likely to succeed. A defendant can ask a judge to dismiss an action if he is satisfied that the statement is not reasonably capable of having a defamatory meaning.
The 2009 act also abolishes the common law offences of defamatory libel, seditious libel and obscene libel.
Anyone who publishes or utters blasphemous matter shall be guilty of an offence and liable to a fine of up to €25,000. Blasphemous matter is material that is “grossly abusive or insulting” about beliefs held sacred by any religion, and which causes “outrage among a substantial number of the adherents of that religion”, where the defendant intends to cause such outrage.
It is a defence to prove that a reasonable person would find “genuine literary, artistic, political, scientific, or academic value in the matter to which the offence relates”.
“Religion” does not include an organisation whose principal object is making a profit, or an organisation that employs “oppressive psychological manipulation” of its followers, or to gain new followers.
The court may issue a warrant to gardai to enter any premises (including a home), by force if necessary, at a “reasonable” time, where gardai have reasonable grounds for believing that copies of a blasphemous statement may be found. The gardai may search the premises and seize and remove all copies of the statement found, and may seize all copies of the statement in anyone’s possession.
Survival of action
Formerly, if a plaintiff died, the action died with him. But under the 2009 act, if a plaintiff dies, the defamation action survives and special damages may be sought, though damages recoverable for the benefit of his estate may not include general, punitive or aggravated damages.
An agreement to indemnify any person against civil liability for defamation in respect of the publication of any statement shall be lawful unless at the time of the publication that person knows that the statement is defamatory, and does not reasonably believe that there is a defence to any action brought upon it that would succeed.
Section 41 extends the jurisdiction of the Circuit Court in defamation actions from €38,000 to €50,000.
Where a person has been convicted or acquitted of an offence in the state, the fact of the conviction or acquittal, and any findings of fact made during the proceedings for the offence are admissible in a defamation action.
Press Council and Press Ombudsman
The act also set up a Press Council and Press Ombudsman to
- ensure the protection of freedom of expression of the press,
- protect the public interest by ensuring ethical, accurate and truthful reporting by the press,
- maintain minimum ethical and professional standards among the press and
- ensure that people's privacy and dignity is protected.
The ministerial order giving formal statutory recognition to the Press Council of Ireland as the "Press Council" was signed on April 23 2010.
Statements having qualified privilege
Schedule 1 Part 1 - Statements privileged without explanation or contradiction
1. A fair and accurate report of any matter to which the defence of absolute privilege would apply (other than a fair and accurate report referred to in section 17(2)(i) or (k)).
2. A fair and accurate report of any court-martial proceedings
3. A fair and accurate report of proceedings (other than court proceedings) presided over by a judge of a court established under the law of Northern Ireland.
4. A fair and accurate report of any public proceedings of any legislature of any state other than the Republicof Ireland.
5. A fair and accurate report of proceedings in public of any body duly appointed, in the State, on the authority of a Minister of the Government, the Government, the Oireachtas, either House of the Oireachtas or a court established by law in the State to conduct a public inquiry on a matter of public importance.
6. A fair and accurate report of proceedings in public of any body duly appointed, in Northern Ireland, on the authority of a person or body corresponding to a person or body referred to in paragraph 5 to conduct a public inquiry on a matter of public importance.
7. A fair and accurate report of any proceedings in public of any body— (a) that is part of any legislature of any state other than the Republic of Ireland, or (b) duly appointed in a state other than the State, on the authority of a person or body corresponding to a person or body referred to in paragraph 5, to conduct a public inquiry on a matter of public importance.
8. A fair and accurate report of any proceedings in public of an international organisation of which the State or Government is a member or the proceedings of which are of interest to the State.
9. A fair and accurate report of any proceedings in public of any international conference to which the Government sends a representative or observer or at which governments of states (other than the State) are represented.
10. A fair and accurate copy or extract from any register kept in pursuance of any law which is open to inspection by the public or of any other document which is required by law to be open to inspection by the public.
11. A fair and accurate report, copy or summary of any notice or advertisement published by or on the authority of any court established by law in the State or under the law of a Member State of the European Union, or any judge or officer of such a court.
12. A fair and accurate report or copy or summary of any notice or other document issued for the information of the public by or on behalf of any Department of State for which a Minister of the Government is responsible, local authority or the Garda Commissioner, or by or on behalf of a corresponding department, authority or officer in a Member State of the European Union.
13. A fair and accurate report or copy or summary of any notice or document issued by or on the authority of a committee appointed by either House of the Oireachtas or jointly by both Houses of the Oireachtas.
14. A determination of the Press Ombudsman (from April 23, 2010).
15. A determination or report of the Press Council (from April 23, 2010).
16. Any statement published pursuant to, and in accordance with, a determination of the Press Ombudsman or the Press Council (from April 23, 2010).
17. Any statement made during the investigation or hearing of a complaint by the Press Ombudsman in accordance with Schedule 2 (from April 23, 2010).
18. Any statement made during the hearing of an appeal from a determination of the Press Ombudsman in accordance with Schedule 2 (from April 23, 2010).
19. Any statement published by a person in accordance with a requirement under an Act of the Oireachtas whether or not that person is the author of the statement.
Schedule 1 Part 2 - Statements privileged subject to explanation or contradiction
1. A fair and accurate report of the proceedings, findings or decisions of an association, or a committee or governing body of an association relating to a member of the association or to a person subject to control by the association.
2. A fair and accurate report of the proceedings at any lawful public meeting in the state or in the EU held to discuss any matter of public concern, whether admission is general or restricted.
3. A fair and accurate report of the proceedings at a general meeting, whether in the State or in an EU member state, of any company or association established by or under statute or incorporated by charter.
4. A fair and accurate report of the proceedings at any meeting or sitting of any local authority or the Health Service Executive, and any corresponding body in an EU member state.
5. A fair and accurate report of a press conference convened by or on behalf of a body to which this part applies or the organisers of a public meeting within the meaning of paragraph 2 to give an account to the public of the proceedings or meeting.
6. A fair and accurate report of a report to which the defence of qualified privilege would apply.
7. A copy or fair and accurate report or summary of any ruling, direction, report, investigation, statement or notice of the Irish Takeover Panel.