Ireland: Client Newsletter Winter 2009 - Litigation And Dispute Resolution - The Defamation Act, 2009

DEFAMATION ACT, 2009

Introduction

Up to now it the area of defamation was governed by the decisions of courts and the Defamation Act 1961. The Defamation Act 2009 ("the Act"), upon its introduction, will reform, restate and clarify the law in this area.

The Act was signed into Law on the 23rd July 2009. The Act repeals The Defamation Act 1961 and makes several important changes to the law of defamation in Ireland. The Order bringing the Act into force has now been signed.

The Tort Of Defamation

Previously "Libel" and "Slander" were separate causes of action. The Act discontinues the use of the terms libel and slander and they will be replaced by the single term "Defamation".

Under the Act defamation will mean publication, by any means of a defamatory statement concerning a person to one or more than one person other than (other than the first mentioned person).

A "defamatory statement" is defined as a statement that tends to injure a person's reputation in the eyes of reasonable members of society.

The Act does not define "statement" but rather states that it includes:-

• A statement made orally or in writing.
• Visual images, sounds, gestures and any other methods of signifying meaning.
• A statement: - (i) broadcast on radio or television; or (ii) published on the internet.
• An electronic communication. An electronic communication includes communication of information in the form of data text, images or sounds or any combination of these by means of guided or unguided electronic magnetic energy or both. This takes into account the modern developments in communication.

The Act says that if the defamatory statement concerned is published to the person to whom it relates and to another person and it was not intended that the statement would be published to the second person and it was not reasonably foreseeable that the publication of the statement to the first person would result in it being published to the second person then for the purposes of the Act, no publication has occurred.

A person will have one cause of action only in respect of the publication of a defamatory statement, even if it has more than one defamatory meaning.

Where publication of the defamatory statement to two or more persons is made, the person has only one cause of action arising from that publication. However, a Court may allow a person to bring more than one defamation action in respect of a multiple publication where it considers that the interests of justice so require.

The Act also clarifies the position in relation to companies and defamation by providing that a company may bring a defamation action in exactly the same manner as an individual.

The Act states that if the statement has more that one imputation there is only one cause of action.

The Act introduces a new requirement for verifying affidavits which must now be sworn by both the Plaintiff and the Defendant within two months of pleadings. Where the Plaintiff or Defendant is a company, the person signing the verifying affidavit must say that they honestly believe the assertions or allegations to be true. If a person makes a statement in the verifying affidavit which is false or misleading in any material respect and that the person knows the statement to be false or misleading that person will be guilty of an offence and liable upon summary conviction of a fine not exceeding €3,000 or for imprisonment for a term not exceeding six months or both. If the conviction is on indictment then the penalty could be a fine not exceeding €50,000 or imprisonment for a term not exceeding five years or both.

Defences

The Defences which existed under the 1961 Act have been repealed and new Defences have been established in this Act. However many of the defences have a familiar ring to them.

• Truth;
• Absolute Privilege;
• Qualified Privilege;
• Honest Opinion;
• Consent to Publish;
• Fair and Reasonable Publication on a matter of Public Interest;
• Innocent Publication;
• Offer to Make Amends;
• Apology

Remedies

Where a publication is found to be defamatory, the Act outlines a number of remedies which are set out below: -

• Declaratory Order;
• Lodgement of Money in Settlement of Action;
• Correction Order;
• Damages;
• Prohibition Order;
• Summary Disposal of Action;
• Criminal Liability

Time Limits Of Actions

The Act provides that a defamation action must be brought within one year from the date of the first publication of the defamatory statement unless the Court extends up to two years. The Court will allow an extension if the interests of justice so require and the Defendant does not suffer undue prejudice when compared with the prejudice the Plaintiff would suffer if the time was not extended. In making a decision the Court will examine why the proceedings where not issued within one year and whether any evidence is no longer available.

Survival Of Cause Of Action On Death

Under the Act an action in defamation survives the Plaintiff is or Defendant's death but in respect of special damages only. This only applies where there is a cause of action existing at the time of death of the Plaintiff or Defendant.

Jurisdiction Of Courts

Under the Act the Circuit Court's authority to award damages is raised to €50,000 in defamation actions.

Press Council

The Act provides for the recognition of the Press Council on a statutory basis. A Voluntary Press Council has been in existence since 2008 comprising of thirteen Directors responsible for the code of practice for the press industry and the appointment of the Press Ombudsman.

Agreements For Indemnity

A person may have insurance against Civil Liability for defamation in respect of the publication of any statement unless at the time of the publication that person knows that the statement is defamatory and does not reasonably believe there is a Defence to any action brought upon it that would succeed.

Conclusion

The implementation of the Act is awaited. It will be some time after the Act has come into effect before we know whether the impact of the Act will be to alter the defamation landscape as dramatically as some of the provisions would suggest.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.