Welcome but imperfect: Defamation Law in Ireland

Firstly, I want to start with reference to the two constitutional rights which act as underpinning conflicts in the tort of defamation. The constitutional right of freedom of expression and the the right to a good name often create a difficult 'balancing-act' (O'Dell, 2020) for the Irish courts, who rely on the Defamation Act [2009] for its jurisdiction. In the recent case of Blenhein v Minister for Health and Children [2018] IESC, MacMenamin J stated in his judgement that many of rights protected by the Constitution are adequately governed by the law of tort, and gave the example of the right to freedom of expression and the right to a good name as protected by the law of defamation. Similarly, O'Donnell J noted in the case of Shatter v Huerin [2019] that "the legal protection of a person's good name as required by the Constitution is to be found in the law of defamation." What MacMenamin J and O'Donnell J negate to examine however, is the fine "balancing-act" between what appears to be competition constitutional rights. This constitutional tension of attempting to vindicate the right of the individual to her reputation while respecting the absolute right of the press and freedom of speech underpins most, if not all, yet few seek to balance one against the other. As this has not occurred, no blanket test has been applied in this area. O'Dell reflects that the balance between the constitutional rights need to be struck so that a consistent framework of such balance can be applied to various defamation contexts and claims.

This tension is an important backdrop when interpreting and analysing the tort of defamation of Ireland, and I would advise any reader to reflect back accordingly to this.

Overview of the Defamation Act [2009] ('the Act')

The Defamation Act [2009] came into force on the 1st of January 2010, repealing the 1961 Defamation Act. The 2009 Act is not retrospective. Crucially, the Act abolishes the historically separate torts of libel and slander as understood under the Defamation Act of 1961 and substantially codified and modernised the law of defamation in Ireland. The Act reflects the traditional test for defamation tort and defines the tort accordingly under Section 6(2) and 6(3). The traditional test in Ireland for defamation was whether the words complained of tend to lower the Plaintiff in the estimation of a right-thinking member of society or tends to make them shun or avoid the Plaintiff. This has not changed, however does now consider broader issues of damage such as economic loss. The Act was one of eager anticipation, the enactment of which represented the end of a process of law reform stretching back almost 20 years as highlighted by John O'Dowd (2009). The tort of defamation was the subject of a Law Reform Commission's Report on the Civil Law of Defamation [1991] and the subsequent Legal Advisory Group on Defamation in 2003. Dr O'Dell notes how the Act is certainly welcomed, however states that the Act insufficiently deals with many areas of the tort of defamation, most notably its failure to account for internet service providers, such as the social media conglomerate. In the age of social media and perhaps more so now as many individuals have reverted to social media as a means of escaping from the current health crisis, it is worrying that the Act fails to account for the statutory provisions of Facebook, Instagram, etc in its skeleton. As data protection and defamation law broadly seek to protect the same thing (informational self-determination) there is a certain crossover between the two in relation to the protection of reputation (Buckley, 2020). O'Dell argues that the lack of statutory provision for internet service providers is "inexplicable" and compares The Act to the US 1997 Statute, which provides internet service providers with a defence for defamatory comments. Such an huge omission, O'Dell reflects, is indefensible and creates several issue in the tort of this area specifically in defamation law.

One key area of welcomed reform by the Act is the statutory support for the Press Council, making it both easier to take and defend defamation proceedings which are usually dealt with in the Circuit Court.

Defamatory statement: Complex and ill-defined legal jargon?

Broadly speaking, the elements of defamation are publication, identification and defamatory effect and the tort of defamation is primarily concerned with the damage or loss of a Plaintiff's reputation as a result of a defamatory statement. Under Section 2, The Act defines a defamatory statement as one that "tends to injure a person's reputation in the eyes of reasonable members of society". Such a statement can be made orally or in writing (Section 1), and can even cover graphics, gestures and images. The term is pretty flexible and Courts are generous to find a defamatory statement so long as several tests are met.

Three basic criteria must be met in order to bring a claim in defamation: 1) The statement must be published, 2) It must refer to the Plaintiff and 3) It must be false.

So the statement must be sent to more than just the person the statement relates to. For example, if you sent your sister a text message calling her all the names under the sun because she stole all your clothes for a night out (personal experiences) that wouldn't pass the test. The statement must reach an audience. Also worth noting is that the statement does not need to make explicit reference to the person the publisher intends to target. This can be done through suggestions of the person's livelihood such as their profession, location or connections. The test for this is whether an ordinary and sensible person can understand and draw the connection to the Plaintiff specifically.

In Court

So a defamatory statement has been published about you, now what? Well, all defamatory statements are technically actionable under the Act, however several elements need to be met in order to satisfy an application to the Court. Firstly, there is a statute of limitations for defamation cases and Plaintiff's have one year from the date of the publication to initiate proceedings, however, there have been exceptional circumstances granted by the Courts which have allowed the period to extend to two years. This differs significantly from the 1961 Act, where Plaintiffs had six-years to take action in slander cases and three in libel actions. In the case of defamatory statements that have been made online, time begins to run on the date that the statement "first capable of being viewed or listened to through that medium."

Under the Act, the Circuit Court obtained enhanced jurisdiction to deal with defamation actions, and can award damages up to €50,000. Also of importance is that the Act allows the Court to have statutory jurisdiction to summarily dispose of defamation actions if two criteria are satisfied by the Court, being 1) the Defendant has no reasonable likelihood of success in defending the case and 2) that the statement in which action was brought is not reasonably capable of establishing a defamatory meaning.

The tort of defamation has traditionally sided with the Plaintiff and the definition as highlighted, is one that is very liberal and generous. Moreover, once a defamation case is brought before the Court, the defamatory statements directed towards the Plaintiff are automatically regarded as false. As such, it is in the interest of the Defendants to carefully consider their defence, as this will be the most important factor in any defamation defend case. As enshrined under Section 8 of the Act, both parties are required to file an affidavit to the Court to be sworn by both Plaintiffs and Defendants when delivering pleadings contains assertions or allegations of fact. This new statutory provision draws a logical parallel with the requirements in personal injuries actions as encoded in the Civil Liability and Courts Act [2004].

Defending a defamation action

There are several defences as enshrined in the Act, the most notable being defences of Truth, Honest Opinion, Privileged, Qualified Privileged and Fair and Reasonable Publication on a Mater of Public Interest (known as the Reynolds defence). As defamation is a strict liability tort, the actual intention of the tortfeasor (fancy word for wrongdoer) is rendered irrelevant in the eyes of the Court. This rule has generally been considered unnecessarily harsh and as such, the Act offers a remedy to balance the rigidness of strict liability defamation, that being the opportunity for the tortfeasor to offer amends by apologising for their previous error (which resulted in a defamatory statement) and to subsequently publish a suitable correction. An important caveat of the Act which is significantly different from the previous 1961 Act, is that it allows Defendants to offer a publication of apology/amends without them admitting liability. An offer of amends is made pursuant to Article 22 of the Act. The media, of course, has welcomed this provision of the Act with open arms and even expressed the provision as being radically ground-breaking, as it allowed them to minimise financial exposure (I will not here measure the extent of their exaggeration, even though I want to!). Further, as stated in the Act, the offer of amendments will not be "admissible in any Civil proceedings as evidence of liability of the Defendant." On a practical note however, this is perhaps slightly naive.

The Act created several remedies in the tort of defamation to include a Declaratory Order (limited to Circuit Court and offers a quick remedy to Plaintiffs uninterested in compensation), Correction Order (does what it says on the tine - directs the Defendant to publish a correction of the defamatory statement) and finally a Prohibitory Order which prohibits the publication of any further defamatory statements. This was the case in Tansey v Gill [2012], where the Plaintiff who was Solicitor, sought injunctive relief against the operators of the website "rate-your-solicitor.com." Peart J in his judgement granted an order pursuant to Section 33 of the Act which prohibited the publication or further publication of the defamatory material complained of and a subsequent order which required the Defendants to terminate the entire operation of the website.

The controversy over the 'Reynolds' defence

The statutory defence of Fair and Reasonable Publication, also known as the Reynolds defence (as it is seen as superficially replicating the terms of the case examined below) is used primarily by journalists and the media. Why I am mentioning it here at all is because out of all the defences under the Act, this one has generated the most controversy. Prior to the enactment of the Act, political tensions were at an all time high as to the concessions that should be given to the work of journalists engaged in public interest journalism. Owing to Ireland's obligations to the European Convention on Human Rights, the Act provides some necessary protections for journalists engaged in such public endeavours.

Many scholars have begrudged the defence as infeasible, and as O'Dell argues, it is "at best clumsy simulacrum of the less confined defence of responsible journalism." The defence is derived from the case of Reynolds v Times Newspaper [2005] when the former Taoiseach Mr Albert Reynolds, sued the Times Newspaper for publishing an article which suggested he lied to his parliamentary colleagues. Lord Lester was counsel for the newspaper and argued that the claim came under that of public interest journalism and that this should be deemed qualified privilege. The argument, both at common law and under Article 18 of the Act, is rooted in the idea that on the basis of public policy concerns it is appropriate for people (journalists especially) to make statements freely without fearing a defamation claim in which they would have to prove the statement in question as true. The Defendant's forcefully argued that journalists are the "bloodhounds and watchdogs" of society, as established by the European Court of Human Rights and as such should be afforded the necessary protection, aligned with their own constitutional rights, to publish freely.

The reason for the controversy then, is because though the defence of fair and reasonable publication is warranted, it is considered to afford the media and journalists significantly less generous terms than that offered by Reynolds (Cox, 2014). Though the question of whether the Irish Courts will ever replace the Fair and Reasonable statutory defence with the more generous provisions found in Reynolds is perhaps a redundant one, it nevertheless remains important to question why the Act did not enact the Reynolds defence and the future of the application of the defence in Irish law.

Concluding thoughts

The tort of defamation has historically been one that is biased towards Plaintiffs. As such, the Defamation Act [2009] is an extremely useful and necessary piece of legislation, especially with regards to arming Defendants for defamation claims. O'Dell perfectly sums it up in his comment, "the Act has supplemented the Plaintiff's armoury substantially. The Defendant's armoury has been re-arranged and also tidied up." The Act has tidied up introduced the qualities of fairness and stability into a notorious area of tort law. Moreover, the Act answers many question raised throughout the decades that preceded it, most prominently perhaps in response to the rise of the social media age. Equally however, the act creates as many questions as it answers and the future of defamation law in Ireland with the continued rise of social media, is I will be watching with interest and intrigue.

- Me trying desperately to make this make sense