DEFAMATION ACT 2009 OVERVIEW
This article on defamation is written by barrister Karl Sweeney and contains of a summary of updates relating to the Defamation Act 2009 including statutes of limitation and how previously separate legal distinctions between slander and libel are now treated under the law.
The following is an overview of how the Defamation Act 2009 legislation works:
- The Defamation Act 1961 is essentially repealed.
- The Defamation Act 2009 is itself not retrospective.
- The distinction between libel and slander is now abolished. A statutory “tort of defamation” (which incorporates both libel and slander) has been created.
- The tort of defamation involves publication of a “defamatory statement” – defined as “a statement that tends to injure a person’s reputation in the eyes of reasonable members of society”.
- This new tort comes with a one-year limitation period (which can be extended to two years in exceptional circumstances). Previously, libel had a six-year limitation period and slander a three-year limitation period. For defamatory statements published via the internet, the cause of action accrues on the date that the statement is “first capable of being viewed or listened to through that medium”.
- The use of Verifying Affidavits will now be necessary in defamation actions. They will require to be sworn by both Plaintiffs and Defendants when delivering pleadings containing assertions or allegations of fact. As such, there is a logical parallel with the requirements of the Civil Liability and Courts Act 2004, which introduced Verifying Affidavits in personal injuries actions.
- A number of slanders used to require proof of Special Damage (actual loss) as a prerequisite for an action. All defamatory statements will now be actionable per se.
- The Circuit Court received enhanced jurisdiction in relation to defamation claims. It is entitled to award damages up to €50,000 in defamation cases. Furthermore, it is the sole forum of application for a novel relief in this area – a Declaratory Order. This is essentially an Order declaring that a statement is false and defamatory of the Plaintiff. Such an application will be initiated by way of originating Motion.
DEFENCES TO DEFAMATION
- The traditional defences to defamation actions are be abolished and replaced with the statutory defences of:-
- Absolute Privilege
- Qualified Privilege
- Honest Opinion
- Fair and Reasonable Publication On A Matter Of Public Interest (heretofore regularly referred to as the “Reynolds Defence”).
- A new statutory offer of amends procedure will be available. Under the 1961 Act, an offer of amends procedure was introduced for the purpose of dealing with unintentional defamation. As defamation is a tort of strict liability, the intention of the tortfeasor has traditionally been regarded as irrelevant. In order to balance the harshness of this rule, it was thought that a person who accidentally published a defamatory statement should be given an opportunity to apologise for their error and to publish a suitable correction. The 2009 Act provides that not only must an offer of amends include an offer to publish a correction and apology, but it must also include an offer to pay “compensation or damages”. Furthermore, the 2009 Act suggests that measurement of such damages will fall to be determined by a High Court jury. It is therefore difficult to see how this offer of amends procedure will prove to be in any way attractive to publishers who have innocently got it wrong.
OFFER OF APOLOGIES IN DEFAMATION
- The offer or publication of an apology can now be introduced into evidence by a Defendant without it being deemed an express or implied admission of liability. Furthermore, the offer or making of an apology will be deemed “…not relevant to the determination of liability in the action” and “not admissible in any Civil proceedings as evidence of liability of the Defendant”. This provision of the 2009 Act has been welcomed by the media and referred to as groundbreaking and immensely helpful. However, it may not seem as welcoming as it sounds. If a jury becomes aware of the fact that an apology has been offered or made by a Defendant, they are not going to spend too much time deciding about it not being admissible as evidence of the Defendant’s liability.
REMEDIES IN DEFAMATION
- The 2009 Act introduces several new remedies. The Declaratory Order (referred to above) is limited to the Circuit Court. However, it will prove to be an important and swift device for persons who are not interested in compensation and who are solely concerned with remediation of their reputation. Plaintiffs who decide to pursue an application for a Declaratory Order will not be entitled to bring any other proceedings arising out of the offending statement.
- Another important remedy which has been created by the 2009 Act is the Correction Order. Where a Defendant is proven to have no defence to the defamation action, the court will, in addition to an award of damages, have power to direct the Defendant to publish a correction of the defamatory statement. This Order will also be available to persons who are pursuing a Declaratory Order (see immediately above) in the Circuit Court.
- The court will also now have a statutory jurisdiction to make Prohibitory Orders in defamation cases. Such an Order, prohibiting the publication or further publication of a defamatory statement, will be available to a Plaintiff who can prove that he has been the subject of such a statement and that the Defendant has no reasonable likelihood of success in his defence. The 2009 Act states that such Orders may be made on an interim, interlocutory or permanent basis. This remedy will be additional to any award of damages available to the Plaintiff.
- The court will now have statutory jurisdiction to summarily dispose of defamation actions (a) if satisfied that the Defendant has no reasonable likelihood of successfully defending the case or (b) if satisfied that the statement in respect of which the action was brought is not reasonably capable of being found to have a defamatory meaning. An application of this nature “…shall be brought by Motion on notice to the other party to the action and shall be grounded on an Affidavit”.
- Perhaps the strangest aspect of the “old” defamation laws was contained in Order 22(3) RSC. This was the rule whereby, in actions for libel or slander, a Defendant could not pay money into court by way of “lodgement” unless he was admitting liability. There may perhaps have been some historical reason for this. A similar rule existed in England up to 1938. However, from a Defence point of view, the existence of this rule more often than not meant that it was not practically possible for a Defendant to pay money into court by way of lodgement. The existence of this rule does not appear to have any obvious rationale and, it might be suggested, was something that was originally put there to keep the media in line. This Rule was analysed in considerable detail by Kelly J. in Norbrook Laboratories Limited and Another v. Smithkline Beecham (Ireland) Limited
 2 I.R. 192. Under the 2009 Act, it will be possible for a Defendant to pay money into court in a libel action while maintaining a denial of liability. From the Defendant’s perspective, this is an important practical development.
- The 2009 Act contains a number of important sections relating to damages. It says that in a defamation action, a High Court judge “shall give directions to the jury in relation to the matter of damages”. This question remains: will such “directions” be delimited by current case law, which disallows a judge from giving any form of sensible direction to a jury? For example, a High Court judge is not currently permitted to refer, for comparison purposes, a jury to the maximum General Damages available to seriously injured personal injury litigants. At least the 2009 Act gives the Supreme Court the statutory power to substitute an excessive High Court jury award with an award of such an amount as the Supreme Court deems appropriate. This will prevent the carousel scenario which did exist and which saw excessive jury awards being overturned by the Supreme Court, the case then being referred back to the High Court, where another excessive jury award occurs, leading to another appeal to the Supreme Court and so on.
- The 2009 Act provides that the Court may, in addition to any other form of damages, order the Defendant to pay Aggravated Damages in circumstances where “the Defendant conducted his or her defence in a manner that aggravated the injury caused to the Plaintiff’s reputation…”.
- In addition to General, Special or Aggravated damages, the 2009 Act provides that the court may order the Defendant to pay Punitive Damages. Such damages can apply where the defamatory statement was published intentionally in circumstances where it would be understood to refer to the Plaintiff and where it was known to be false or where it was published recklessly as to its truth or falsity.
- The court’s ability to award Special Damages is also recognised by the 2009 Act. Such damages will recognise financial loss suffered by the Plaintiff as a result of the injury to his or her reputation.
- The 2009 Act provides for the survival of civil defamation claims following upon the death of the Plaintiff. The cause of action will survive for the benefit of the Plaintiff’s estate. However, it will only survive to the extent that it relates to a claim for Special Damages. Conversely, an action for defamation against a person will survive his death and may be prosecuted against his estate. However, it will only survive to the extent that it relates to a claim for Special Damages.
THE PRESS COUNCIL
The 2009 Act provides for Ministerial recognition of a Press Council. The Press Council is a non-statutory body tasked with maintaining minimum ethical and professional standards among the press. The Press Council employs the Press Ombudsman who receives, hears and determines complaints concerning the conduct of Press Council members.
The 2009 Defamation Act is helpful in parts so far as Defendants are concerned. However, this body of law is one that is traditionally biased towards Plaintiffs. As previously, defamatory statements (note the very broad definition of same) are automatically deemed to be false. They are actionable without proof of special damage.
The 2009 Act has supplemented the Plaintiff’s armoury substantially. The Defendant’s armoury has been rearranged and also tidied up. There is much in the 2009 Act, which is of great interest. The common law offence of criminal libel has been abolished. Its statutory counterpart (as set out in the 1961 Act) has been repealed. The notorious blasphemy provision (Section 36) however has tremendous potential for abuse.