The Department of Justice recently issued its Justice Plan 2024, which commits to making significant progress towards amending Ireland's defamation laws in 2024
In particular, the Department proposes to shortly publish the Defamation (Amendment) Bill, the General Scheme of which was published in 2023 (see our previous update here). The proposed reforms to Ireland's defamation laws are significant and comprise recommendations made following a statutory review of the current governing legislation, the Defamation Act 2009 (Act). Proposed changes include the abolition of juries in High Court defamation actions and enlarging the jurisdiction to grant Norwich Pharmacal Orders to the Circuit Court.
A number of cases came before the Irish courts in recent times alleging defamation. Those cases provided the courts with an opportunity to clarify the meaning of certain aspects of the law governing defamation, as summarised below.
Qualified privilege
Under section 18 of the Act, qualified privilege provides a defence to a defamation action where the defendant had a legal, moral, or social duty to communicate the information and the recipient had a corresponding duty to receive it. The courts have interpreted that corresponding duty to receive as meaning that the recipient was likely to be affected by the information communicated. The courts typically take the approach that qualified privilege is only available in respect of private communications.
Bird v Iconic Newspapers Limited [2024] IECA 62, concerned defamation proceedings against a newspaper on foot of an article it published containing inaccurate statements relating to the plaintiff's alleged underpayment of taxes and settlements with the Revenue Commissioners. The defendant had argued that once a belief is honest, even if profoundly mistaken, qualified privilege is available as a defence. This was rejected by the High Court, which was upheld by the Court of Appeal, as it would be entirely inconsistent with the constitutional protection of an individual's good name. Regarding mutuality of duty or interest for qualified privilege, O'Moore J clarified that there must be an "actual duty or an interest" on the part of the recipient to receive the information. It is not sufficient that the communicator honestly believed the recipient had such a duty.
In Mark Kelly v Boylesports Limited [2024] IECC 5, the Circuit Court awarded a plaintiff €7,500 in respect of defamation arising out of a notice published on the defendant's internal website. The defendant claimed that the publications were made in accordance with the provisions of section 18; they were published on its internal system, which was not accessible to the public. The court found that the internal publication was not excessive per se. However, no reasonable basis for the creation of the notice was offered to the court. It found that the subsequent internal publication of negative information about the plaintiff was excessive and, in the absence of any reasonable basis being offered as to the defendant's belief that the plaintiff was acting contrary to its interests, was evidence of malice. The defence of qualified privilege, therefore, failed.
Reputation damage
In Burke v Mediahaus & Ors [2024] IEHC 348, the High Court considered the plaintiff's pre-existing reputation in holding that certain words used in a newspaper article published by the defendant were incapable of injuring the plaintiff's good name.
The Court noted that although a blemished reputation can be injured, where the allegedly defamatory statement is not inconsistent with the person's actual reputation or is much less serious than the matters which give rise to the plaintiff's actual reputation, then no injury to reputation has occurred.
Online defamation
As discussed in our recent article, the High Court in Gilroy & Byrne v O'Leary applied the strict limitation period for defamation proceedings arising out of online publications under section 11(3B) of the Statute of Limitations 1957, with negative consequences for the plaintiffs' application to join Google as a party to its proceedings.
Conclusion
The decisions discussed above illustrate the heavy burden on both plaintiffs and defendants in prosecuting and defending defamation actions. This reflects the competing constitutional rights of plaintiffs and defendants underlying defamation actions. The courts will engage with all elements of the tort of defamation and the provisions of the Act in considering whether a plaintiff has established the necessary proofs. This is similarly the case where a defendant seeks to invoke a statutory defence, such as qualified privilege.
Contributed by Gail Nohilly and Jennifer Lowe
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.